Repair and Maintenance of Easements – Whose Responsibility?

AS PREVIOUSLY PUBLISHED IN THE RURAL VOICE:

The Ontario Superior Court of Justice ruled on a case where the duties surrounding easements and who has the obligation to maintain an easement were at issue.  An easement is a legal right to use another person’s land for a specified purpose and must have four characteristics to be effective. There must be a dominant and a servient tenement – the “dominant” land is benefitted by the “servient” land over which the easement applies; the easement must “accommodate” the dominant tenement in that it is reasonably necessary for the enjoyment of that land; the owners of the dominant and servient tenements must be different persons (you can’t have an easement over your own land); and a right over land cannot amount to an easement unless it is capable of forming the subject-matter of a grant (for instance, the right can’t be vague or uncertain). Case law has established that where an easement is created by express grant, the nature and extent of the easement should be determined based on the language of the instrument that created it, taking into account the circumstances at the time the easement is created.

In the recent court decision, the “dominant” owner was found to have no positive obligation to repair and maintain a drain located on the “servient” owner’s land. The servient land was located adjacent to the Highway 401 corridor.  In 1959, the owner of the servient land, part of a farm, had granted the Province an easement for the installation of a drainage system.  The drain was properly installed but, as the years went by, the drain deteriorated and caused the farm property to retain water.  The servient owner experienced crop loss and had to undertake significant repairs to the drain at a cost of roughly $60,000.  The servient owner sued the Province (and later the Municipality that took over the easement) to recover his losses.  After the Plaintiff passed away, his estate carried on the action and asked the Court to grant summary judgment (a decision made by the court without a full trial) against the Municipality.

After repairing the drainage system, the Plaintiff had contacted the Province and the Municipality to inform them of the problems in hopes of having the repair costs covered. The Municipality informed the Plaintiff that it only had the right to maintain the drain and not an obligation to do so.  Hearing this news caused the Plaintiff to write a letter to the Mayor of the Municipality setting out the background behind the drainage easement.  The Municipality did not respond to the letter or take responsibility for the repair costs, which led to the Plaintiff commencing his action.

The Plaintiff’s claims included requests for a declaration that the Municipality is liable for the continuing maintenance of the drain, reimbursement of the costs to repair and replace the drain,  and damages for the loss of crops. The Court considered several issues in deciding the claim, including the applicable test for summary judgment, the nature of the easement, whether the Municipality had a positive obligation to repair the drain, and whether the Municipality was liable to the Plaintiff for the cost of the drain repair and/or the crop loss and in what amount(s).

In considering what the nature of the easement was, the Court determined that both the original easement (originally granted to the Province) and the transferred easement (as transferred from the Province to the Municipality) are valid in law.  The Highway 401 corridor was considered to be the dominant tenement and the Plaintiff’s property was the servient tenement; the original easement and the transferred easement accommodated the drainage of the highway (reasonably necessary for the use of the highway); the owners of the dominant and servient tenements were different persons; and, the right to build and maintain a tile drain on a strip of the property was a right capable of forming the subject matter of a grant.  Having concluded that the easements are valid, the Court then addressed the Plaintiff’s claim that the Municipality had a positive duty to repair and maintain the drain and cover the costs incurred.  The Court ruled against the Plaintiff based on its interpretation of the easement.

The Court referenced the legal principles established by the Supreme Court of Canada in a 2014 decision that stated evidence should be examined by considering the mutual and objective intention of the parties.  When it comes to easements, the words of the grant must be interpreted in an ordinary and grammatical meaning that aligns with the circumstances of the parties involved at the time the easement was created.  The Court found in this case that the original easement was silent with regard to any obligation to repair.  While in some cases, the party enjoying the use of the easement will be liable for repairs, that was not the case in this scenario.

Absent express language in the grant of the easement, the “dominant owner” (the person benefitting from the easement) does not have an obligation pursuant to the grant of easement to keep the easement in proper condition. However, that doesn’t necessarily leave the “servient” owner (whose land is subject to the easement) without a remedy. Where the dominant owner acts negligently or commits a nuisance, they can still be held liable for repair costs and damages.  In this case, the Plaintiff’s estate was permitted to continue with a claim for damages based on the law of nuisance.

Read the decision at:  2024 ONSC 2811 (CanLII).

Landowners found guilty of violating excessive fortification of land by-law through excessive surveillance equipment

In October, 2015, the Ontario Court of Justice released its decision in a case involving the fortification of property.  Many municipalities outlaw the excessive fortifying of property as it is often associated with gang or organized crime activity and may unduly intrude on the privacy of neighbours.  A husband and wife in Oshawa were charged with having applied "excessive protective elements to land", in this case video surveillance (8 cameras in front of the house, one to the south side, one on the fence at the northwest portion of the back yard and one affixed to a rear yard television antenna tower).  Various signs were also posted around the property, including one that read: "This private property & fence is enforced by video surveillance.  This is not a public thruway or thoroughfare.  Boundary line is 6" left of fence.  Resident has no permission or authority whatsoever to violate this boundary.  Persons entering this private sideyard on behalf of resident could be considered part of resident's continuance actions.  Also could be considered and served court subpoena as witnesses should action be decided or taken."

After several requests for entry to the house by a by-law officer were denied, the officer applied for and obtained a search warrant.  Inside the house, the officer observed live images from each of the 11 cameras, and determined that was possible for the antenna camera to be rotated 360 degrees and to provide a view well beyond the property of the defendants.  The officer determined that the video surveillance went well beyond "reasonable protection" that would not offend the by-law.

The defendants challenged the by-law charge first on the basis that the officer's search of their home was illegal.  Justice of the Peace Coopersmith disagreed - there was a valid search warrant.  She also disagreed with the defendants' arguments about the non-applicability of the by-law to private property:

Mr. L is prone to taking things out of context or simply does not understand the law or legal principles to which he refers.  Consequently, he draws his own unfounded conclusions.  For example, he failed to contextually understand the concept of a municipality as possessing powers of a “natural person” in exercising its authority.  He used parts of the Ontario Land Owners Association Report to ground his submission that “Fortification By-laws can only be implemented on “public properties” and not on private properties.”  I do not accept Mr. L’s submissions that fortification by-laws do not apply to private property, only to public lands. The definition of “Land” in Section 1.1(p) of Oshawa’s Fortification By-law 103-2005 does not distinguish between public and private lands.  Section 2.1 expressed the application of the By-law to all land within the City, unless it is expressly exempted by legislation.  Therefore, I find the L’s property at 1988 Walreg Drive in Oshawa is captured by the By-law’s definition of “Land”.

On the issue of what constitutes "reasonable protection", which is not prohibited by the by-law, Justice of the Peace Coopersmith said:

The term “reasonable protection” is not defined in the City’s By-law 103-2005.  Hence, applying a contextualized and plain meaning to these words, I am of the opinion that the words refer to adequate fortification that will afford the protection necessary to keep people and their property from theft or other criminal activity.  I accept that over the years the defendants experienced a break and enter into their dwelling and other incidents of vandalism to their property.  I do not find the meaning of “reasonable protection” to include protection from incidents or harassment of trivial importance, such as annoyed neighbours making faces and waving their middle fingers at the intrusive surveillance cameras aimed down the side of their home.  In a residential area, for example, the public interest in reasonable enjoyment of and privacy in one’s property is not served if excessive protective elements, such as video surveillance cameras capable of monitoring neighbours’ activities in their own homes and on their own yards, are present. 

The City’s Fortification By-Law 103-2005 serves to balance such public interest within residential neighbourhoods with the private interests of residents to protect their own property from theft or other criminal activity.  The By-Law suffices to allow people to protect themselves and their property from theft or other criminal activities, but it also limits the use of protective elements, such as video surveillance systems, to no more than is required for such protection.  In defining “Excessive Protective Elements” to capture visual surveillance equipment, including video cameras … capable of permitting either stationary or scanned viewing … beyond the perimeter of the Land”, Oshawa’s By-Law strikes a reasonable balance between private and public interests by affording its residents the right to monitor for theft or other criminal activity on their own respective properties, while serving the public interest of privacy and peaceful enjoyment by residents on properties in relatively close proximity to such video surveillance equipment.

The defendants were convicted of having violated the by-law.

Read the decision at: Oshawa (City) By-Law.

Natural Severance Case Being Appealed

In May, 2015, I wrote about a decision from the Superior Court of Justice in which a property was found to be severed naturally by a navigable watercourse - the Bear Creek (see Court Rules that Bear Creek was navigable in 1831).  The case is now under appeal by the Municipality and a hearing has been scheduled for February 4, 2016 in Courtroom 2 at the Court of Appeal (Osgoode Hall) in Toronto.

When the Drainage Act and Conservation Authorities Clash

In a case decided in September, 2015, the Agriculture, Food and Rural Affairs Appeal Tribunal examined the interplay between the Drainage Act and conservation authorities in Ontario.  The matter involved a farmer who wanted to drain cleared, cultivated agricultural land through a low, wet bush and a cattle-tramped low run that happened to contain 28 minnows.  The farmer initiated a process under the Drainage Act, and was then assessed a bill of nearly $50,000 for an "environmental impact study" that was allegedly required for a permit from the local conservation authority ("CA").

Under the Drainage Act, a conservation authority or government may request an "environmental appraisal" for a new drain, but the party making the request is responsible for the cost.  In this case, the farmer did not request the "environmental impact study" and did not apply for any permits from the CA.  However, as the Tribunal noted, "the CA took over jurisdiction, admittedly ignorant of certain parts of the Drainage Act.  The CA prosecuted its own CA mandate over the farmer and his drain request with great earnestness, if not zealously."

In the hearing of the farmer's appeal of the assessed cost, the CA argued essentially that the Tribunal had no jurisdiction over it.  The CA candidly pleaded its ignorance of the drainage laws and, furthermore, that the CA's statutes are more recent and consequently take precedence.  Lastly, the CA argued that its work related to an "environmental impact study" and not an "environmental appraisal".

The Tribunal found that it did not have jurisdiction over the CA in this case.  It also found that the Municipality involved (which sought to put the cost of the "environmental impact study" on the landowner) should bear the cost of the environmental study.

In examining the jurisdiction issue, the Tribunal noted that the CA had notice of the Drainage Act process initiated by the farmer, but waited more than a year later to demand an "environmental impact study" under its own legislative regime.  The CA did not request an "environmental appraisal" under the Drainage Act.  The tribunal concluded the following:

What the Tribunal has ascertained under law (rather than equity) is that there are 2 parallel regulatory schemes.  Neither is inconsistent with the other.  Technically phrased: obedience to one does not necessitate disobedience to the other.  The CA has the right to request an environmental appraisal under the Drainage Act or its own regulatory scheme.  There is no overt or even nuanced conflict between the regulatory regimes.  Even though the CA dithered regarding the petition process under the Drainage Act, it could still invoke the processes under the Conservation Authorities Act.

 The tribunal is acutely aware that this interpretation allows the CA to potentially circumvent or thwart the Drainage Act processes.  It makes the petition process, especially section 6 moot.  That means the CA can avoid the intrinsic balance of costs and demands legislatively fixed in the Drainage Act with over a century of experience.  Then again the Tribunal expects that the knowledge of this decision will become wide spread amongst the drainage and conservation communities.  Ignorance and indifference can no longer be pled.  Perhaps as is the case with maintenance of drains, the drainage and conservation communities can establish policies that are respectful of both mandates.

Having no jurisdiction over the CA, the Tribunal then decided the issue of responsibility for the cost of the environmental report between the farmer and the municipality.  The Tribunal ordered that the municipality bear the full cost of the report, finding that the excessive cost could have been avoided if the municipality had properly facilitated the drainage proposal.

There was a dissenting opinion from one of the members of Tribunal.  That member would have found that the Tribunal did have jurisdiction over the CA and would have ordered the full cost of the report to be borne by the CA.

Read the decision at: Darmar-Tamlin Municipal Drain (RE).

Surplus Farm Residence Severances - Differing decisions from the OMB

Two recent decisions from the Ontario Municipal Board (OMB) have addressed the limits on severing surplus farm residences from larger farm parcels.  In one decision, the OMB declined to allow the severance of a parcel larger than about 1.5 acres on the basis that the proposed severance was not of "a minimum size" as required by the 2014 Provincial Policy Statement (PPS).  The farm landowner had requested a severance of approximately 5 acres from the existing 98-acre farm, including a residence and three accessory buildings.

In the other decision, the OMB approved the severance of approximately 86 acres out of a 102-acre farm.  The parcel to be retained by the owners, who were retiring from farming, contained a surplus residence, barn, and drive shed.  The balance of the farm (the severed 86-acre parcel) was apparently going to be conveyed to another area farmer to be used in conjunction with a larger operation.

These two decisions would appear to be at odds with each other.  In both cases, the applicant landowner was attempting to sever more than the minimum residence plus 1 acre because the severance of a larger parcel made more sense given the actual configuration and development of the property.  However, it is clear that in the case where the OMB declined to permit the larger severance, the OMB held that it did not have the evidence it needed from the landowner to go beyond the "minimum" severance.

Read the OMB decisions at: Simcoe (County) v Essa (Township) and McClary v. Middlesex Centre (Township).

BC Landowner's nuisance claim dismissed - insufficient interference by water from municipal lands

A BC landowner sued his municipality over drainage runoff, seeking both damages and an injunction requiring the municipality to take "immediate and effective action to stop the flow of water onto his property."  In 2002, the municipality approved the development of 68 townhomes by a developer adjacent to and north of the landowner's property.  As a condition of the development, a greenway was granted to the municipality running between the properties (including a gas pipeline right of way and an asphalt walkway).

The landowner alleged that prior to the development, there was a watercourse between one and three feet deep running in the location of the greenway.  The developer was permitted to fill in this watercourse resulting in the loss of the drainage route and periodic flooding on the landowner's property to the south (3.67 acres).

The municipality responded that the surface ponding of water on the landowner's property was a natural and pre-existing feature given the location of the property at the toe of a slope, its proximity to the water table, and the impermeable condition of its soils.  Also, the municipality argued that any additional water flowing onto the landowner's property was so minor in volume that it did not constitute a substantial interference with the landowner's use or enjoyment of his property.

On review of the evidence, the BC Supreme Court was unable to accept the landowner's contention that water was never a problem on his property prior to the development.  The Court found that the landowner exaggerated the extent of the water problems suffered since the development.  Also, the water table underlying his property was high and the soil was "fairly impermeable".

The Court concluded that any water coming onto the landowner's property did not meet the test of a claim in nuisance - that it resulted in a substantial and unreasonable interference with his use or enjoyment of the property or that there was sufficient physical damage to the land.  The landowner's property was a "holding property, awaiting development", and the consequences from increased water were minor.  The landowner did not demonstrate that "the pooling water along the northern boundary of his property has either substantially altered the nature of his property or interfered to a non-trivial or significant extent with the actual use being made of the property."  There was also no basis to find that any substantial adverse alteration of the land had been caused.

The landowner's nuisance claim was dismissed.

Read the decision at: Wood v. Langley (Township).

Drainage Tribunal orders landowners to pay municipality nearly $50K in costs

The following summary of a recent decision of the Agriculture, Food and Rural Affairs Appeal Tribunal says it all:

"This Drainage Act appeal was unusual. Firstly, the quality of construction of the drainage works was challenged in circumstances where the drain was performing exactly as designed. Secondly, the Appellants’ case lacked any reliable evidence to support their challenge. Thirdly, the Appellants pursued issues that were outside the Tribunal’s jurisdiction, and did so contrary to the Tribunal’s directions.  Fourthly, the appeal was devoid of merit, and in effect frivolous.  Fifthly, shortcomings and the mounting costs were called to the Appellants’ attention before and during the hearing on more than one occasion. Sixthly, these same Appellants had previously pursued a quality of construction appeal on the same drain that another Tribunal Panel determined was unwarranted and, subsequently ordered these same Appellants to pay costs. Despite all that the Appellants pursued a costly and unsuccessful appeal hearing and want their neighbours or the taxpayers of the Municipality to pay for it.

In the circumstances of this case and for the reasons explained, the Tribunal awards the Municipality the costs of the appeal fixed at $49,536.80."

It's pretty rare that the Tribunal awards any costs, especially in Drainage Act proceedings. This decision demonstrates that there is a line that can be crossed, following which parties to Drainage Act appeals may be liable to pay costs to the successful party.

Read the decision at: Coleman Municipal Drain 2013 (RE).

Empty barn not enough to trigger MDS to prevent neighbours' severance

Landowners had applied to their municipality to sever a 0.84 acre parcel from their existing 30-acre lot.  County planning staff determined that the proposed severance complied with MDS requirements and that the County had no objection to the proposal.  However, a neighbour did object to the severance, suggesting that the new lot would breach MDS provisions because it would come too close to his 1860-era barn.  Although the barn was vacant, the neighbour was considering returning the barn to livestock use.  He asked that the proposed severed parcel be moved to a different location on the applicants' property.

The municipality went ahead and approved the severance, so the neighbour appealed to the Ontario Municipal Board ("OMB").  The only issue on the appeal was the application of MDS to the severance, and the OMB ruled that MDS did not apply.  Although the OMB took issue with some aspects of the municipality's methodology for considering required setbacks, the OMB concluded that the neighbour's barn did not correspond to the definition of a "livestock facility" within the governing Provincial documents.  MDS had no application in this case.

As the OMB noted:

The fundamental problem with this appeal, however, pertains to the barn itself, and whether it even constitutes a "livestock facility", as understood in the Provincial documents. The Board was not persuaded for the following reasons.

The Provincial documents are unequivocal: to qualify as a "livestock facility", it is not enough for a building to be "structurally sound"; it must also be "reasonably capable of housing livestock." The two criteria are not synonymous. Although the neighbour insisted that the structure would not actually fall over, he offered essentially no evidence it could meet any other expectations.

Indeed, the Board was not shown how the existing structure could be much more than a "shade shelter" (which is specifically excluded from consideration as a "livestock facility"). Although there was no "comprehensive building analysis", it did not take a comprehensive analysis to discern that the structure had no insulation, electricity, ventilation, stalls, hay storage, manure storage, or livestock equipment. It also had planks visibly missing from its siding in various places. None of the observations by the CBO were contradicted. The structure is a shell, and not even one that is impervious to the elements.

Whether or not the structure was considered appropriate for livestock by 1860 standards, the Province would not have published its detailed instructions for "determining when a barn is a livestock facility", if such a primitive structure could qualify. The Board is satisfied that if this structure were subjected to even the most elementary agricultural standards today, substantial remodeling would be essential.

That is where the neighbour encounters a second problem. The Guidelines specify that MDS II also applies to "remodeled livestock facilities.”

The CBO apparently concluded that no remodeling under MDS II would be feasible – not because the barn was too close to the proposed severed parcel, but rather because it was too close to Ms. [S]'s existing dwelling across the road. The Board heard no evidence to contradict that position.

Therefore, notwithstanding the eloquence of the [O] brothers and their expert, the Board was not shown how the barn could now trigger the MDS process – or that it ever could.

Read the decision at: O’Brien v Laronde.

Court rules that Bear Creek was navigable in 1831 - natural severance of property results

I first posted about this case in December, 2012; it has now gone to a hearing and a decision has been rendered.  Justice Mitchell has declared that the portion of Bear Creek that passes through the property owned by the respondents in the application "was navigable in 1831 and, therefore, title to its bed was retained by the Crown creating a natural severance of the property."  That was the position that had been taken by the respondent landowners when they hired a surveyor to prepare a reference plan showing Bear Creek as a navigable watercourse comprising unpatented Crown land.  Based upon that reference plan, they purported to convey the land on one side of the creek from joint ownership to ownership by one of the landowners alone.

The court application was commenced by the local municipality, which took objection to the reference plan prepared by the surveyor.  The municipality asked the Court to declare that the watercourse (which is now part of a municipal drain under the Drainage Act) does not create a natural severance of the property.  Her Majesty the Queen in Right of Ontario was also added as a respondent to the application and supported the municipality's position.

In making her decision, Justice Mitchell started from the finding ("not seriously challenged by the Municipality in its argument on the application") that the present watercourse on the property "is the same watercourse located on the property in 1831" at the time of the Crown grant.  Therefore, in determining whether the watercourse was navigable in 1831, Justice Mitchell could rely on the present navigability of the watercourse.

She concluded: "The depth of the watercourse is presently and, based on the evidence of Mr. Burwell, also was at the time of the original grant, sufficient to float a small craft or a log.  There is no suggestion that the water does not flow freely along the watercourse or that its flow is obstructed in any meaningful way.  There may be seasonal fluctuations in the depth and flow of the watercourse but the parties agree this evidence is not determinative of the issue: See the seventh and eighth criterion in Coleman.  The watercourse was, therefore, "navigable" in fact at the time of the original Crown grant."

However, in order to create the natural severance, the watercourse must also have been "capable of public use" or "public utility" in 1831.  Justice Mitchell said of this requirement: "Trite to say that actual use, both historical and present day, is the best evidence of a watercourse's capability of public use.  That said, other "lesser" evidence will suffice to meet the evidentiary burden."  On a review of  the totality of the evidence, she found that "it is more probable than not that the watercourse was not only "capable of public use" in 1831 but was actually used by the public. ... It was capable of constituting an aqueous highway for public commercial and/or recreational use at the time of the original Crown grant regardless of whether or not it was considered by the public useful for such purposes."

As a result, the bed of Bear Creek as it passes through the respondent landowners' property was never actually granted by the Crown to private landowners in 1831.  It was the bed of a navigable watercourse that was reserved to the Crown and now serves as a physical separation between the respondents' property (properties) that lies on either side of the watercourse.

Read the decision at: Municipality of Middlesex Centre v MacMillan et al.

Sask Court rules that no compensation payable on expropriation of road

A Saskatchewan municipality passed a by-law to expropriate a roughly 2-acre road parcel from a quarter section of privately-owned land.  The affected landowners applied unsuccessfully to the Court  of Queen's Bench to quash the by-law, following which the issue of compensation for the expropriation was set to be determined.  In a decision released last October, the Court ruled that, in the circumstances of this particular case, no compensation was payable for the taking.

The road had actually been constructed by the municipality in 1980 to provide access to nearby lands. The 2-acre roadway cut across an 8-acre triangular piece of the quarter section, which was cut off from the remainder of the lands by a railway line.  The landowners (and/or their predecessors-in-title) had acquiesced in the construction and continuing use of the road.  The municipality had continued to maintain the road since its construction.

In 2004, the landowners applied to subdivide the quarter section to turn the 8 acre parcel into a one-lot subdivision.  This prompted the municipality to raise a concern about the maintenance of the road access across the property.  Eventually, the one-lot subdivision proposal turned into a two-lot proposal.  Between 2004 and 2011, the municipality and the landowners attempted to negotiate a resolution.  The municipality offered to purchase the 2-acre parcel in December, 2010, but no agreement was reached.  In March, 2011, the municipality passed its expropriation by-law.

In determining compensation, the Court of Queen's Bench found that the highest and best use of the land being taken was not a two-lot subdivision as proposed by the landowners.  The Court found that a two-lot subdivision was not a "reasonably probable use of the eight acre parcel" and that "there was no reasonable expectation that such a subdivision would occur."  For one thing, the road access issue was holding up any approval of a two-lot subdivision.  There was also evidence that the subdivision would not meet setback requirements.

The Court then looked at the effect of the taking on the eight-acre parcel as a whole: "what, then, should the applicants be paid, taking account of the value of the road parcel? Based on the before and after method, the applicants should receive the difference between the value of the eight acre parcel that they owned prior to the expropriation, and the value of the approximately six acre site that they will have after the expropriation. That calculation accounts for the value of the road parcel, the damage to the remaining six acre parcel, and any increased value to the remaining land arising from the work to be done - that is, the maintenance of a public road - on the road parcel. "

On the basis that the highest and best use of the land affected was as an eight-acre one-lot subdivision, the Court concluded that no compensation was payable: "Given that the transfer of the road parcel without compensation was an unavoidable cost of a single lot subdivision, the value of the eight acre parcel for a single lot subdivision was the same before and after the expropriation of the road parcel. The applicants accordingly suffered no loss as a result of the expropriation. Indeed, and as noted by counsel for the respondent, the expropriation of the road parcel puts the applicants one step closer to having the legal access that is a requirement for any subdivision. As such, it is a special benefit to the applicants."

The Court would have reached the same conclusion had the highest and best use of the land been agricultural: "no compensation is payable - even if the highest and best use of the eight acre parcel was the existing agricultural use. The road parcel is already used for the road, and is not available for agricultural use. As such, loss of title to the road parcel would not affect the value of the quarter section for agricultural purposes. "

Read the decision at: Colhoun v Rural Municipality of Lumsden No. 189.

Divisional Court tells Municipality of West Grey to change by-laws and grant permits required for local wind farm

The applicant wind farm developer (NextEra Energy Canada ULC) sought judicial review of two municipal permitting by-laws that prevented it from proceeding with the construction of a project; in order to complete the development, the applicant said that it required permits from the Municipality of West Grey.  The Divisional Court hearing the application noted: "The application raises the question of when and how a municipal by-law or policy may frustrate the purpose of a provincial legislative instrument.  The factual backdrop for this legal question is the ongoing renewable energy revolution in Ontario that was ushered in by the Green Energy Act, S.O. 2009, c. 12.  This revolution has spawned much litigation, particularly around wind energy projects."

 

The applicant received the Renewable Energy Approval (REA) from the Ontario Ministry of the Environment for its 14-turbine project in January, 2014.  However, the applicant would also need "entrance permits" to connect access roads on private lands to the public highways within the municipality, as well as "oversize/overweight haulage permits" to allow for the conveyance of large and heavy project materials by truck along public highways.  The municipality declined to grant the required permits, in part on the basis of changes it had made to its by-laws.

 

The applicant argued to the Divisional Court that it holds a valid REA from the province and that, since the municpal by-laws are in direct conflict with the REA, the by-laws are inoperative to the extent of the conflict (under Section 14(1) of the Municipal Act, 2001).  The Court noted that a municipality can only exercise its powers by by-law, and the Municipal Act, 2001 provides that a by-law cannot frustrate the purpose of a provincial or federal Act, regulation or instrument. 

 

Based on the Court's interpretation of the REA, it found that the municipality's permitting by-laws did prevent the project from being built.  Therefore, the by-laws frustrated the purpose of the REA and must be held inoperable, but only to the extent of the conflict with the REA. 

 

However, the Divisional Court did not accept the applicant's alternative argument that the municipality had acted in bad faith in refusing to grant the required permits.  As the Court stated, "The Municipality is a democratic body accountable to its constituents.  It has a broad legislative discretion to enact by-laws governing issues that regulate daily life and the built infrastructure within its jurisdiction ... Council's call for a moratorium on wind energy projects in Ontario and its declaration that it is an "unwilling host" for such projects are not acts that, in and of themselves, support a finding of bad faith."

 

Read the decision at: East Durham Wind, Inc. v. The Municipality of West Grey.

NEB rules in favour of Kinder Morgan Trans Mountain - City of Burnaby prohibited from interfering or obstructing destruction of park land

In a decision dated October 23, 2014, the National Energy Board (NEB) has ruled that: 1) it has the jurisdiction to determine that City of Burnaby by-laws are inoperative or inapplicable to the extent that they conflict with or impair the exercise of Trans Mountain's powers under paragraph 73(a) of the NEB Act; 2) the doctrine of federal paramountcy, or alternatively, interjurisdictional immunity renders those by-laws inapplicable or inoperative for the purposes of Trans Mountain's exercise of its powers under paragraph 73(a) of the NEB Act; and, 3) the NEB has authority under subsection 13(b) of the NEB Act to issue an order against the City of Burnaby.

The NEB has issued that order, which prohibits Burnaby from interfering with or obstructing Trans Mountain and its staff, representatives, contractors, or agents from exercising Trans Mountain's powers under paragraph 73(a) of the NEB Act to enter into an on lands owned by or controlled by the City of Burnaby (including park lands and conservation lands) to complete surveys and examinations.  The NEB then specifies that there is a "broad range of necessary activities and arrangements that must be performed in completing the surveys and examinations", including but not limited to "associated brush clearing, tree removal, movement of equipment, traffic management and bore hole drilling necessary to complete the geotechnical site investigations."

The NEB also ordered that Burnaby could not order or authorize its own personnel to be present within any "safety zone" set by Trans Mountain during the survey and examination work.

BC Court of Appeal says club can continue to fly model aircraft on farmland runway

A radio control club used an agricultural property to fly model aircraft.  The local municipality challenged this use as being outside the scope of permitted agricultural uses.  The club argued that its activites fell within a permissible secondary use - "unpaved airstrip and heli pad".  The municipality argued that all uses in the agricultural zone must be agricultural or complimentary to agriculture; the RC flying satisfied neither category.  A motions judge agreed with the municipality.

The case went to the BC Court of Appeal and the motions judge's decision was reversed.  The restriction of "farm" classification in the zoning by-law to activities directly associated with agriculture was unjustifiable.  The Court ruled that the "farm" classification allows complementary uses that are suitable in an agricultural setting, including activities not directly associated with farming but conducive to the setting.  These activities do not disrupt or change the essential agricultural character of the land.  Because the RC club's activities were of this class, they were permissible secondary uses of the farm land.

Read the decision at: Lake Country (District) v. Kelowna Ogopogo Radio Controllers Association.

Unauthorized fill on properties found to violate zoning and site-alteration by-laws

The Township of Uxbridge went to Court over unauthorized site alterations and contraventions of the zoning by-law concerning property use.  In one case, the alleged alterations had left half of the property unsuitable for agricultural purposes, with that land now being used to store vehicles, equipment and debris from an excavation and haulage business.  In the other case, the allegation was that fill was illegally deposited on a former farm field, converting the field into an "industrial soil screening and mixing operation".  The same respondents were connected to both properties.

The zoning for the properties was "Rural", which allowed for non-residential uses such as "conservation, forestry and reforestation" and "a farm or nursery farm and greenhouse associated therewith".  The evidence of the owner of the properties was that the first property was being used only for residential use and that the second property was being used for a "farm or nursery farm and greenhouse associated therewith".  The Court disagreed, finding that the uses of both properties fell outside of the permitted uses under the zoning by-law.  Storage of landscaping materials and equipment was not permitted as farming or nursery farming.  The Court also rejected the argument that the use of each property should be permitted as a "legal non-conforming use".

On the issue of illegal site alterations, the Court dismissed the Township's application with respect to the first property because it had insufficient evidence to show that any by-law was breached.  With respect to the second property, the Court found that the Township had proven that more than 1,000 cubic metres of soil products were stored on the property in breach of the site alteration by-law.  The Court commented on the evidence:

"However, I do not accept that this is the extent of the soil material on the [G] property.  It is suspicious, to say the least, that [T] first indicated that he was unsure how much soil had been brought onto the property and placed in the "illegally filled area".  He then indicated that it was 240 truckloads, and only after hearing that an amount in excess of 1,000 cubic metres would require Council's approval of the permit, did he revise his application to indicate 880 cubic metres."

Based on its rulings on the zoning by-law infractions and the illegal site alteration, the Court made several injunctive orders restraining the respondents from continuing their illegal uses of the properties.

Read the decision at: The Corporation of the Township of Uxbridge v. Talbot.

Court of Appeal upholds decision requiring municipality to honour drainage agreement

In a previous post (January, 2013), I reported on a Superior Court decision requiring a municipality to honour a drainage agreement from 1953.  The agreement required the municipality to maintain and repair in perpetuity part of a storm sewer drainage system that it had constructed on and near the lands of a local farmer.  60 years later, the successor landowners wanted the municipality to honour the agreement; the municipality ceased all maintenance and repair work, and the matter ended up in court.

The Ontario Court of Appeal has upheld the lower court decision requiring the municipality to honour the agreement.  The municipality appealed on three issues: (1) the landowners' claims concerning the agreement are statute-barred; (2) the landowners have no standing to enforce the agreement since they have no privity of contract with the municipality; and (3) the agreement is contrary to public policy and, hence, unenforceable.

On the limitation period issue, the Court of Appeal agreed with the lower court judge that there was insufficient evidence that the municipality's repudiation of the agreement had been accepted by the landowners or their predecessors in title.  Instead, the contract (repudiated by the municipality) was affirmed by the landowners and treated as subsisting and on-going.  If the contract in this case was still in effect, then the municipality was under a perpetual obligation to maintain and repair the drain.  No limitation period had expired to free the municipality from this obligation.

On the issue of standing, the Court of Appeal disagreed with the strict application of the doctrine of privity of contract (i.e. only the parties to the contract have standing to sue for breach of the contract) for this case.  To apply the doctrine would have allowed the municipality to escape the stated purpose and express terms of the contract (which provided that it would "inure to the benefit of and be binding upon the parties hereto and their respective heirs, administrators, successors and assigns").  Here, the Court of Appeal was prepared to allow the current landowners to enforce the contract as they stood in the shoes of the original contracting party.  The Court would also have applied the principled exception to the privity rule if necessary.

Lastly, the Court of Appeal rejected the municipality's argument that the agreement was void on public policy grounds.  The Court noted that the municipality's factum (written argument) did not address one part of this argument and that it would not be fair for the landowners to have to deal with it.  The Court also rejected the argument for lack of evidentiary support.

Read the decision at: Brown v. Belleville (City).

Landowners seek to rely on 60-year old drainage maintenance agreement with municipality

Landowners and a municipality disagreed over the continuing effectiveness of an agreement made in 1953 that required the municipality's predecessor to maintain a drainage system and to make good any and all damage caused to the landowner (property owner).  The agreement had been made at a time when the local Township wished to construct a drainage system along a road.  In exchange for a right of access to the neighbouring property belonging to the predecessor-in-title to the current landowners, the Township gave the undertakings respecting maintenance and repair of damages.  The agreement was not registered on title, but the current landowners were aware of it.

When the current landowners asked the current municipality (the successor of the original Township) to meet its obligations under the agreement, the municipality responded that it was no longer bound by the agreement.  The parties then agreed to have the Court decide the question in a "Special Case" under Rule 22 of the Rules of Civil Procedure.

The result was the following series of declarations by the Court in favour of the landowners:

1. A DECLARATION that the Agreement on April 27, 1953, properly interpreted, did impose a perpetual obligation of the Township of Thurlow to maintain the drainage system it had installed in good working condition at all times and to make good any and all damage caused to the property owner whoever that may be from time to time as a result of lack of repair or of acts done at any time by the corporation in maintaining and repairing the system.

2. A DECLARATION that as a result of the amalgamation of the Township of Thurlow and the Defendant City in 1998, the Defendant City is bound by the contractual obligations of the former Township which are found to have been created by the Agreement.

3. A DECLARATION that the Agreement is valid and binding notwithstanding that it was not entered into or, the system was not constructed, under or in accordance with legislation such as the Drainage Act.

4. A DECLARATION that the Agreement can be enforced against the Defendant City although it was not registered on title under the Registry Act and/or the Land Titles Act.

5. A DECLARATION that the Plaintiffs are not barred from enforcing the Agreement by s. 449 of the Municipal Act, 2001.

6. A DECLARATION that the Defendant does not have a valid defence to the Plaintiffs’ claim on the basis that the conduct of the Defendant amounts to the exercise or non-exercise of a discretionary function resulting from a policy decision.

7. A DECLARATION that the Plaintiffs are successors of the Agreement and thus, are entitled to enforce the Agreement without an express assignment.

8. A DECLARATION that the Defendant does not have a valid defence to the Plaintiffs' claim on the basis that the Plaintiffs are trying to enforce a positive covenant in regard the land.

9. A DECLARATION that the Agreement, which imposes a perpetual obligation upon the City, is not invalid as contrary to public policy because it does impose a perpetual obligation.

10. A DECLARATION that there is sufficient description of the property and easements in the Agreement to create an enforceable agreement.

11. A DECLARATION that the Defendant does not have a valid defence to the Plaintiffs’claim on the basis that the Plaintiffs did not inquire about the Agreement and/or its status before they bought the land, and/or by reason of the defence that the Plaintiffs did not rely on the Agreement when they bought the land.

12. A DECLARATION that the Agreement is not void as against public policy as fettering the Defendant City’s discretion with respect to future uses of roads and road allowances.

13. A DECLARATION that there is no statutory limitation period that acts to bar an action by the Plaintiffs.

14. A DECLARATION that the Plaintiffs’ claim for damages for breach of the Agreement is not defeated by the doctrine of laches.

Read the decision at: Brown v. Belleville (City).

Ontario: Provincial Planning Act Policy Statement undergoing 5-year review

The Provincial Policy Statement (PPS), the document that guides municipalities in planning decisions (including severances from farm properties) is undergoing its regular 5-year review.  Draft policies have been released for public review (see Draft Policies).  The main draft policy on agricultural areas is as follows:

2.3 Agriculture

2.3.1 Prime agricultural areas shall be protected for long-term use for agriculture.

Prime agricultural areas are areas where prime agricultural lands predominate. Specialty crop areas shall be given the highest priority for protection, followed by Canada Land Inventory Classes 1, 2, and 3, and any associated Class 4 to 7 soils within the prime agricultural area, in this order of priority.

2.3.2 Planning authorities shall designate prime agricultural areas and specialty crop areas in accordance with guidelines developed by the Province, as amended from time to time.

2.3.3 Permitted Uses

2.3.3.1 In prime agricultural areas, permitted uses and activities are: agricultural uses, agriculture-related uses and on-farm diversified uses.

Proposed agriculture-related uses and on-farm diversified uses shall be compatible with, and shall not hinder, surrounding agricultural operations. Criteria for these uses may be based on guidelines developed by the Province or municipal approaches, as set out in municipal planning documents, which achieve the same objectives.

2.3.3.2 In prime agricultural areas, all types, sizes and intensities of agricultural uses and normal farm practices shall be promoted and protected in accordance with provincial standards.

2.3.3.3 New land uses, including the creation of lots, and new or expanding livestock facilities shall comply with the minimum distance separation formulae.

2.3.4 Lot Creation and Lot Adjustments

2.3.4.1 Lot creation in prime agricultural areas is discouraged and may only be permitted for:

a) agricultural uses, provided that the lots are of a size appropriate for the type of agricultural use(s) common in the area and are sufficiently large to maintain flexibility for future changes in the type or size of agricultural operations;

b) agriculture-related uses, provided that any new lot will be limited to a minimum size needed to accommodate the use and appropriate sewage and water services;

c) a residence surplus to a farming operation as a result of farm consolidation, provided that:

1. the new lot will be limited to a minimum size needed to accommodate the use and appropriate sewage and water services; and

2. the planning authority ensures that new residential dwellings are prohibited on any vacant remnant parcel of farmland created by the severance. The approach used to ensure that no new residential dwellings are permitted on the vacant remnant parcel may be recommended by the Province, or based on municipal approaches which achieve the same objective; and

d) infrastructure, where the facility or corridor cannot be accommodated through the use of easements or rights-of-way.

2.3.4.2 Lot adjustments in prime agricultural areas may be permitted for legal or technical reasons.

2.3.4.3 The creation of new residential lots in prime agricultural areas shall not be permitted, except in accordance with policy 2.3.4.1(c).

2.3.5 Removal of Land from Prime Agricultural Areas

2.3.5.1 Planning authorities may only exclude land from prime agricultural areas for:

a) expansions of or identification of settlement areas in accordance with policy 1.1.3.8;

b) extraction of minerals, petroleum resources and mineral aggregate resources, in accordance with policies 2.4 and 2.5; and

c) limited non-residential uses, provided that:

1. the land does not comprise a specialty crop area;

2. the proposed use complies with the minimum distance separation formulae;

3. there is a demonstrated need within the planning horizon provided for in policy 1.1.2 for additional land to be designated to accommodate the proposed use; and

4. alternative locations have been evaluated, and

i. there are no reasonable alternative locations which avoid prime agricultural areas; and

ii. there are no reasonable alternative locations in prime agricultural areas with lower priority agricultural lands.

2.3.5.2 Impacts from any new or expanding non-agricultural uses on surrounding agricultural operations and lands are to be mitigated to the extent feasible.

There are also other aspects of the proposed PPS that deal with agriculture, such as extraction of petroleum or aggregates from prime agricultural lands.

You can participate in the PPS review up to November 23, 2012:

Ontario is holding workshops in communities across the province. Please visit the regional workshops page or call 1-877-711-8208 if you have any questions.

To submit your comments electronically, complete this online questionnaire, or you can send written comments to:

Provincial Policy Statement Review
Ministry of Municipal Affairs and Housing
Provincial Planning Policy Branch
777 Bay Street, 14th Floor
Toronto, ON M5G 2E5
Tel: 416-585-6014 or 1-877-711-8208
Fax: 416-585-6870
E-mail: PPSreview@ontario.ca

Please note: All comments and submissions received will become part of the public record.

Comments must be received no later than November 23, 2012.