From: Mark Early
Mark C. Early, MCIP, RPP, CMO Director of Planning Deputy CAO/Clerk TOWN OF MONO 347209 Mono Centre Road Mono, Ontario L9W 6S3 519-941-3599, Ext. 226
From: emarshall [mailto:[email protected]] Sent: Thursday, April 17, 2014 7:01 PM To: Laura Ryan Mayor Cc: [email protected] Subject: Planning Ontario the History and the Intent
Hello Mayor Ryan and Mr. Early I have been waiting for Terrance Green, LLB to finish reading over this report. Now that he has completed it, he feels this report has pertinent information needed. This is a report on planning in Ontario so please consider this as “part 2” of our written submissions. Thank you for your time.
Elizabeth Marshall Director Canadian Justice Review Board Director of Research Ontario Landowners Association President All Rights Research Ltd., Associate Research Fellow – Meighen Institute for Public Affairs
I am not a lawyer and do not give legal advice. Any information relayed is for informational purposes only. Please contact a lawyer.
“EMINENT DOMAIN. – So great moreover is the regard of the law for private property, that it will not authorize the least violation of it; no, not even for the general good of the whole community. If a new road, for instance, were to be made through the grounds of a private person, it might perhaps be extensively beneficial to the public; but the law permits no man, or set of men to do this without consent of the owner of the land…Besides the public good is in nothing more essentially interested, than in the protection of every individual’s private rights…” Blackstone Commentaries, 2:138-9
www.ontariolandowners.ca
Planning Ontario: The History and The Intent. ©
A report created by the Research Team of the Ontario Landowners Association March, 2014 ©
E.F. Marshall, Tom Black, President Director of Research Ontario Landowners Association Ontario Landowners Association 1-613-831-2642 Director: Canadian Justice Review [email protected] Board Associate Research Fellow: Meighen Institute for Public Affairs
“Again it appears to me to be almost inconceivable that the Crown should claim the right to do such things as prostrate fences, take possession of the great industrial works mentioned, or cause any buildings to be destroyed, without being bound at law to compensate the owners therefor.”1 “This is a fundamental principle, going back at least to Magna Carta,”…“Since Magna Carta the estate of a subject in lands or buildings has been protected against the prerogative of the Crown.”2
1 Attorney General v. De Keyser’s Royal Hotel, Ltd., May 10, 1920
2 Attorney General v. De Keyser’s Royal Hotel, Ltd., May 10, 1920
Copyright and Disclaimer
This document was prepared for the Ontario Landowners Association (OLA) by E. F. Marshall, Director of Research, OLA
The OLA, including any of its members or staff are not lawyers and any information provided or communicated is not legal advice or counsel. It is for informational purposes only. Please seek legal advice from your lawyer.
Copyright © March, 2014 by the Ontario Landowners Association
Table of Content Acknowledgement Page 1 Executive Summary Page 2 A Brief History Page 4 The Municipalities Page 40 The Planning Act Page 86 The Places to Grow Act Page 113 Conclusion Page 118 Glossary Page 120 Criminal Code of Canada – Sections Page 157 ONTARIO REGULATION 322/12 Page 170 Fig. 1 Page 176
ACKNOWLEDGEMENT
Terrance J. Green, BA, LL.B, MPA Green & Associates Law Offices Suite 712 170 Laurier St., Ottawa, ON K1P 5V5
Phone: 1-613-560-6565, ext, 22 Fax: 1-613-560-0545 Email: [email protected]
We would like to thank Terry, for his time and support during the creation and editing of this document. Terry participated as Legal Advisor in vetting this report. Terry practices law in the fields of animal law, real estate and disabilities law. He has a BA, St Mary’s University, 1978, Masters in Public Administration (MPA), University of Winnipeg, 1992, LLB, University of Ottawa 1999.
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EXECUTIVE SUMMARY
Historically the jurisdiction of the Municipalities hasn't changed since the very beginning of Municipal Acts in the Province of Quebec, Upper Canada, Quebec, or Ontario, depending on which point in history one is referring to. It has always been that the Municipalities could not plan for something if they did not own it3. The terms of this go back as far as Magna Carta.
If a municipality in England was considered "community owned", council community or a manor village with a set term of years in the letters patent for the manor property, then it was considered community housing, whereas in Ontario because of the settlement of Canada, it was not community owned4 unless the municipality purchased the land, developed the land and then zoned the land for use of it. As for designation, there could be no designation unless there had been dedication by grant in deed, registered against the title, for the use of the public, by a private property owner. This could not be forced as, like any form of government, municipalities cannot do indirectly what they cannot do directly5.
Throughout Ontario, the Province is demanding that Municipalities implement Official Plans. Our Municipal Councils are being told that they must implement these plans as dictated under the Places to Grow Act, the Planning Act, the Provincial Policy Statement, the Municipal Act, and so forth. What has not been revealed to our Municipal Representatives is that these “official plans” are placing our municipal councils and staff in very precarious positions, as these plans can be considered “trespass”, a violation of superior documents and a violation of the constitutional rights of the people.
There are also the constitutional and questionable legal aspects of these plans that have not been taken into consideration, in regards to what the province may dictate to the municipalities to do and there is also the legislation that, it would seem, supports that all levels of government cannot plan for something if they do not own it, in regards to private property. What also must be considered is the implication that if the
3 Court rulings don't support claim of open beaches. Midland Free Press, May 19, 2000. (This article is a revised and updated version of TINY'S SHORELINE -- A LEGAL HISTORY, which appeared in Issue #14 (Spring 1999) of The Tiny Cottager) Midland Free Press, May 19, 2000. p.2.
4 "A judgment at trial granted a declaration that the respondent company was the owner of certain lands and ordered the appellant municipality to pay damages for trespass. An appeal from the said judgment was dismissed by the Court of Appeal and the municipality then appealed further to this Court. … This was really sufficient to dispose of the appeal. To summarize: Hawley had conveyed Street X long before his [Page 587] - plan was registered; the root of title to that portion of Ontario Street shown to be under water on Hawley’s plan is the Crown grant of the 70-acre water lot made in 1876. In 1901 both properties came into the ownership of Gilmour & Co. Ltd., the predecessor in title of B.W. Powers & Son Limited, the respondent. I would dismiss the appeal with costs." Appeal dismissed with costs. Citation:Trenton (Town) v. B.W. Powers & Son Ltd., [1969] S.C.R. 584
5 “It is an evasion of the Act from which the Local Legislature derives its power. The Local Legislature cannot, no more than private individuals, act as it were in fraud of the law, that is, do by indirect means what it cannot effect directly." Constitution of Canada. The B.N.A. Act, 1867; Its Interpretation, etc., p. 209
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municipalities do not subscribe to these official plans, which include private property, they will not receive their gas tax transfers6. And yet in the 2011 Annual Expenditure Report (Part I), the President of Association of Municipalities of Ontario, R.F. (Russ) Powers, in his opening statement had this to say about the Gas Tax Transfers:
“AMO administers the Fund for 443 municipalities in Ontario, and the allocation is passed directly to them on a per capita basis, without the need to fill out an application form. In December 2011 Canada’s Gas Tax Fund was enshrined in legislation as a permanent annual transfer for municipal infrastructure.”
This would seem to be a direct transfer from the Federal Government, unless it is AMO that would withhold the funding from a municipality until an Official Plan was agreed to. If these issues have not been revealed and agreements knowingly accepted, by individual municipalities, this is a violation of the municipalities, and the property owners that have elected the "directors/council" of their municipal corporations. A specific plan for transportation is not equivalent to a plan that trespasses on private property.
6 “Integrated Community Sustainability Plan Under the Gas Tax Fund, municipalities must complete an Integrated Community Sustainability Plan (ICSP). The ICSP must demonstrate a co-ordinated approach to sustainability in terms of social, cultural, environmental and economic objectives through co-operation with municipal partners and the community as a whole. Under the specific provisions of the Ontario Gas Tax Agreement, municipalities that have an Official Plan (OP) are deemed to have met this requirement.” Canada’s Gas Tax Fund: Permanent funding for municipal infrastructure, Transfer of Federal Gas Tax Revenues Under the New Deal for Cities and Communities, Association of Municipalities Ontario, p. 16.
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A BRIEF HISTORY
This is a brief history, to prepare the reader for the following sections. The reason for this is because during previous research it has been found that the law schools may have not been instructing lawyers in historical law, law of equity or the common law. Without the basis or foundation of law, as expressed by Laura Legge, a prominent lawyer and past Treasurer of the Law Society of Upper Canada:
"And, in my opinion, having been a lawyer for fifty-six years, if you don’t understand the law of equity, as well as the common law, how in the world can you be a lawyer in our legal system?"7
This is a description which, is needed, to fully understand that unless property is owned by the Crown in right of Canada, the Crown in right of Ontario, public lands owned by the Federal, Provincial (commissions and agencies, etc.,) and Municipal corporations (local boards), or property where the private property owner has willingly and knowingly (without demand for permission/license, trickery or duress) has entered into an agreement with said corporations, there is no regulatory authority without full compensation8. It should be noted that not even those elected or their staff may violate the Constitution or the Criminal Code of Canada.
MAGNA CARTA
"Here is a law which is above the King and Parliament, and which even He and They must not and may not legally break. And in the event they or anyone else were to try to abrogate it, such attempt at abrogation shall have no force nor effect [1297] and can be safely ignored with no legal ill effect. In addition, in the event of successful attempts at abrogation of such liberties, customs, or rights, the King has commanded and do hereby compel any and all subjects to swear oath to join the barons to assail the properties and persons and families of those (saving the King, Queen and the royal children) who had successfully completed such abrogation, including but not limited to that of the individual Members of Parliament who had voted in favour of any such successful attempts at abrogation [1215]. This reaffirmation of a supreme law and its expression in a general charter is the great work of Magna Carta; and this alone justifies the respect in which men have held it."9 - Winston Churchill, 1956
7 ." LAURA LEGGE TRANSCRIPT. LAURA LEGGE INTERVIEW #1. DATE: JULY 6, 2004 , PLACE: LEGGE AND LEGGE, BARRISTERS AND SOLICITORS, 65 ST. CLAIR AVE. E., TORONTO. INTERVIEWER: ALISON FORREST. MEDIA: 2 MINI-DISKS APPROX. 58:23 AND 13:42 MINUTES IN LENGTH AND ONE MINI-CASSETTE OF SAME. Page 90-100. http://www.lsuc.on.ca/uploadedFiles/PDC/CR_and_A/Virtual_Archive/LAURA%20LEGGE%20TRANSCRIPTS(1).pdf
8 Attorney General v. De Keyser’s Royal Hotel, Ltd., May 10, 1920
9 Winston Churchill, 1956 - "A History of the English-Speaking Peoples", volume I, chapter 8, p. 218 of The Folio Society's 2003 edition, published in London, Published 2002 (first published 1956) .
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Before the need for Magna Carta, English law consisted of Saxon Common Law10 which eventually turned into Anglo-Saxon Common Law. The foundation of this Common Law was that one would be protected by one's inalienable rights. These rights consisted of: the right to life, limb, and liberty, the right to move freely, the right of religious freedom, the right of free speech, the right to bear arms for protection against Crown and government oppression and the right of private property11 including the right to do with said property as one sees fit. 12 The protection of private property is also supported by your right of contract without government interference13.
In 1066 England was invaded by William the Conqueror. William wanted to be king and own everything including all private property, so under the disguise of protection of all the property, in England, there should be a list created of all the private property and that all the private property owners should sign over their rights to him so that, as King, he would have the right to defend their and his property. This list was called the doomsday list (census14). And it was a doomsday list because through trickery and false statements he had the private property owner’s sign over their property to him. Shortly thereafter the legislation and regulation started.15
This went on for decades and in 1215, William’s successor, King John was under siege through civil war. King John lost this war and the people, under the leadership of the rich land owners (barons), forced King John to sign the Magna Carta. This document put limitations on King John and all the following Royals as to what they had control over, including the Forests, cities, towns, property16, religion, etc. It also
10 http://en.wikipedia.org/wiki/Anglo-Saxon_law, as of July 26, 2012
11 Magna Carta, Petition of Rights, Bill of Rights, Abolition of Star Chamber, etc.,
12 “Notwithstanding the last mentioned fact or any of those considerations arising out of the ownership of the lands in question and the right of an owner to deal with the lands belonging to him or it, as to such owner may seem fit,…” Attorney-General for British Columbia and the Minister of Lands v. Brooks-Bidlake and Whitall, Ltd., 63 SCR 466.
13 FREEDOM OF CONTRACT (Black’s Law Dictionary, 9th Edition, 2009, p. 735 (1879)) – the doctrine that people have a right to bind themselves legally; a judicial concept that contracts are based on mutual agreement and free choice, and thus should not be hampered by external control such as government interference.
14 “We decree that all freeman bind themselves by homage and fealty, that within and without the whole kingdom of England, they will be faithful to King William their lord, and every where preserve his lands and honours with all fidelity, and defend him against all foreign and domestic enemies.” (Blackstone, pages 49-50, Book II)
15 “…that ancient constitution, of which our ancestors had been defrauded by the art and finesse of the Norman lawyers, rather than deprived by the force of the Norman ares.Blackstone Commentaries, 1899, v. 1, pg. 53.
16 And in pursuance of the same principle, King John laid a total interdict upon the winged as well as the four-footed creation he forbade fowling throughout all England. The cruel and insupportable hardships which those forest laws created to the subject, occasioned our ancestors to be as zealous for their reformation, as for the relaxation of the feudal rigours, and the other exactions introduced by the Norman family; and accordingly we find the immunities of charta de foresta as warmly contended for, and extorted from the king with as much difficulty, as those of magna carta itself. By this charter, confirmed in parliament, many forests were disafforested, or stripped of their oppressive privileges and regulations were made in the regimen of such a remained; particularly killing the king’s deer was made no longer a capital offense, but only punished by a fine, imprisonment, or abjuration of the realm. And by a variety of subsequent statutes, together with the long acquiescence of the crown without exerting the forest laws, this prerogative is now become no longer a grievance to the subject. But as the king reserved to himself the forests for
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included the initial sections which eventually became the Forest Charter, which removed the king's authority over private property in regards to the use of property, woods and wild animals. This document didn’t grant any new rights, it only re- established the rights the people had before the invasion, which was the Anglo-Saxon17 Common Law. Magna Carta is the foundation of all government throughout the British Commonwealth and also the foundation for the protection of private property rights with limitations on the Crown and government. It is also the document that granted the King the license or permission to be King.
Some may imply that Magna Carta is an ancient document with little or no standing and yet it is still used by government, to support government, today in the Courts18. The same has been said in regards to Blackstone's Commentaries and yet these documents support the common law rights of the people and explain that it is the courts obligation to uphold these common law inalienable rights19. This is supported by the Federal Interpretation Act, section 8.2 which states:
Property and Civil Rights20 his own exclusive diversion, so he granted out from time to time other tracts of land to his subjects, under the names of chases or parks, or gave them license to make such in their own grounds; which indeed are smaller forests, in the hands of a subject, but not governed by the forest laws; and by the common law no person is at liberty to take or kill any beasts of chase, but such as hath an ancient chase or park; unless they be also beast of prey. Blackstone, p. 416,417
17 Saxon customs. – …But when husbandry took place under the Saxon government, and lands began to be cultivated, improved, and enclosed, the beasts naturally fled into the woody and deserted tracts; which were called the forests, and, having never been disposed of in the first distribution of lands, were therefore held to belong to the crown. These were filled with great plenty of game, which our royal sportsmen reserved for their own diversion, on paid of pecuniary forfeiture for such as interfered with their sovereign. But every freeholder had the full liberty of sporting upon his own territories, provided he abstained from the king's forest: as fully expressed in the laws of Canute, and of Edward the Confessor:…(let every man be entitled to hunt in his own wood, fields, and manor: and let every man abstain from the royal forests, if he wish to live in peace): which indeed was the ancient law of the Scandinavian continent, from whence Canute probably derived it. (For every one is permitted to hunt any wild animal on his own grounds, in whatever manner he pleases.)" William Blackstone and Thomas M. Cooley – Book II, V. 1, Ch. 33, p. 413, 414, 415
18 Court file no. : 34908 - CONSEIL SCOLAIRE FRANCOPHONE DE LA COLOMBIE-BRITANNIQUE, FÉDÉRATION DES PARENTS FRANCOPHONES DE COLOMBIE-BRITANNIQUE, et al v. HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF BRITISH COLUMBIA AND THE MINISTER OF EDUCATION OF THE PROVINCE OF BRITISH COLUMBIA - January 2013
19 “...I shall however just mention a few negative statutes, whereby abuses, perversions, or delays of justice, …, are restrained. It is ordained by Magna Carta, that no freeman shall be outlawed, that is put out of the protection or benefit of the law of the land. …, it is enacted, that no commands or letters shall be sent under the great seal, or the little seal, the signet, or privy seal, in disturbance of the law; or to disturb or delay common right: and, though such commandments should come, the judges shall not cease to do right.” Blackstone Commentaries, 1765,p. 125-139
20 Uniformity of Laws in Ontario, Nova Scotia, and New Brunswick Legislation for Uniformity of Laws in Three Provinces 94. Notwithstanding anything in this Act, the Parliament of Canada may make Provision for the Uniformity of all or any of the Laws relative to Property and Civil Rights in Ontario, Nova Scotia, and New Brunswick, and of the Procedure of all or any of the Courts in those Three Provinces, and from and after the passing of any Act in that Behalf the Power of the Parliament of Canada to make Laws in relation to any Matter comprised in any such Act shall, notwithstanding anything in this Act, be unrestricted; but any Act of the Parliament of Canada making Provision for such Uniformity shall not have effect in any Province unless and until it is adopted and enacted as Law by the Legislature thereof. British North America Act, 1867.
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Duality of legal traditions and application of provincial law 8.1 Both the common law and the civil law are equally authoritative and recognized sources of the law of property and civil rights in Canada and, unless otherwise provided by law, if in interpreting an enactment it is necessary to refer to a province’s rules, principles or concepts forming part of the law of property and civil rights, reference must be made to the rules, principles and concepts in force in the province at the time the enactment is being applied. 2001, c. 4, s. 8. Terminology 8.2 Unless otherwise provided by law, when an enactment contains both civil law and common law terminology, or terminology that has a different meaning in the civil law and the common law, the civil law terminology or meaning is to be adopted in the Province of Quebec and the common law terminology or meaning is to be adopted in the other provinces. 2001, c. 4, s. 8.21
Magna Carta had been reconfirmed a number of times; those being from 1215 to 129722 and in conjunction with Magna Carta, sections 4423, 4724, 4825, and 5326 were enlarged on, in the Forest Charter, 1216-1217, which included:
The FIRST FOREST CHARTER OF KING HENRY THIRD; Granted November 6th, A.D. 1217, in the Second Year of His Reign.27
(XII.) Every Freeman for the future, may, without danger, erect a mill in his own wood or upon his own land which he hath in the forest; or make a warren28, or
21 Interpretation Act, R.S.C., 1985, c. I-21. An Act respecting the interpretation of statutes and regulations. http://www.canlii.org/en/ca/laws/stat/rsc-1985-c-i-21/latest/rsc-1985-c-i-21.html
22 Historical Essay on the Magna Carta, R. Thomson, 1829,. 23 44. Men who dwell without the forest need not henceforth come before our justiciaries of the forest upon a general summons, unless they are in plea, or sureties of one or more, who are attached for the forest.
24 47. All forests that have been made such in our time shall forthwith be disafforsted; and a similar course shall be followed with regard to river banks that have been placed "in defense" by us in our time.
25 48. All evil customs connected with forests and warrens, foresters and warreners, sheriffs and their officers, river banks and their wardens, shall immediately by inquired into in each county by twelve sworn knights of the same county chosen by the honest men of the same county, and shall, within forty days of the said inquest, be utterly abolished, so as never to be restored, provided always that we previously have intimation thereof, or our justiciar, if we should not be in England.
26 53. We shall have, moreover, the same respite and in the same manner in rendering justice concerning the disafforestation or retention of those forests which Henry our father and Richard our brother afforested, and concerning the wardship of lands which are of the fief of another (namely, such wardships as we have hitherto had by reason of a fief which anyone held of us by knight's service), and concerning abbeys founded on other fiefs than our own, in which the lord of the fee claims to have right; and when we have returned, or if we desist from our expedition, we will immediately grant full justice to all who complain of such things 27 Translated from the original, preserved in the Archives of Durham Cathedral., Historical Essay on the Magna Carta, R. Thomson, 1829, p. 329.
28 WARREN – A franchise or place privileged by prescription or grant from the Crown, for the keeping of beasts or fowls of the warren. Dictionary of Jurisprudence, 1847, P. 696
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pond, or marle- pit29, or ditch, or turn it into arable land, so that it be not to the detriment of any of the neighbours.30
In 1641, King Edward III signed the “Act for the Limitation of Forests”. There were Forest Laws and the protection of the Crown Forests and the boundaries of these forests. During this era, there were accounts of private property owners having to deal with the King’s Forest’s boundaries being extended. King Edward III, to protect the private property of the people, enacted that the boundaries of the forests must be determined and marked, so as not to infringe or abrogate the “land/property” rights of the people.
II. And be it further enacted by the authority aforesaid, that no place or places within this realm of England…,…or regard made within the space of sixty years next before the first year of His Majesty’s reign that now is, shall be at any time hereafter judged, deemed, or taken to be forest, or within the bounds or meets of the forest; but the same shall be from henceforth for ever hereafter disafforested, and freed, and exempted from the forest laws…”31
To determine what were the forests of the King and to determine what land had been alienated from the King, the lists had to be confirmed and used. These would be the successive titles of the private property owners and the surveys32 and/or fence rows that accompanied. These boundaries were in the form of title lists, registration, to know who owned what and how these boundaries had been “pretended”33 to extend. Please note the statement of “sixty years”, a precursor to the Nullum Tempus Act of 1769 (60- year Crown Prerogative Limitation).
The Nullum Tempus Act, 1769, introduced by Sir George Savile, also known as "An Act for the general quiet of the Subjects against all Pretences of Concealment whatsoever." There is no greater title than that of a title granted by the Crown34. As for the Nullum Tempus Act, as noted continues today in Canada, of a 60-year limitation of
29 MARL PIT - Definition: A pit from which marl, a mixture of clay and carbonate of lime, is excavated. Marl is used as a fertilizer. Parent Term: DYE AND PIGMENT SITE Hierarchy: TOP / INDUSTRIAL / CHEMICAL INDUSTRY SITE / CHEMICAL PRODUCTION SITE / DYE AND PIGMENT SITE / MARL PIT. http://sine.ncl.ac.uk/term_definitions.asp?thesaurus_code=ty&term_id=4704
30 Historical Essay on the Magna Carta, R. Thomson, 1829, p. 333
31 Act for the Limitation of Forests. August 7, 1641. 16 Car. I. cap. 16 Statutes of the Realm, v. 119.
32 Richard Thomson, Historical Essay of the Magna Charta, for Lord Spencer II.
33 Ibid.
34 The Speeches of The Right Honourable Charles James Fox in the House of Commons Vol. I, p. 7-8.
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the prerogative35 and 60-year adverse possession36 from the Crown. Sir Charles Duke Yonge, in regards to Sir George Savile, stated in the Constitutional History of England From 1760 to 186037, how that security was obtained.
“Sir George, however, was not discouraged; he renewed his motion in 1769, when it was carried by a large majority, with an additional clause extending its operation to the Colonies of North America; and thus, in respect of its territorial rights, the crown was placed on the same footing as any private individual, and the same length of tenure which enabled a possessor to hold property against another subject henceforth equally enabled him to hold it against the crown…”
THE ROYAL PROCLAMATION, 1763
The Royal Proclamation of 1763 is, as with all of our constitutions, part of our standing constitution. It was of such an importance, to the Native Community, that it was considered the Magna Carta of the Native Community and has standing today in the 1982 document, section 25, which states:
Aboriginal rights and freedoms not affected by Charter 25. The guarantee in this Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada including (a) any rights or freedoms that have been recognized by the Royal Proclamation of October 7, 176338; and (b) any rights or freedoms that now exist by way of land claims agreements or may be so acquired.
"Instructions of 1768.
35 Limitation where the Crown interested 3. (1) No entry, distress, or action shall be made or brought on behalf of Her Majesty against any person for the recovery of or respecting any land or rent, or of land or for or concerning any revenues, rents, issues or profits, but within sixty years next after the right to make such entry or distress or to bring such action has first accrued to Her Majesty. R.S.O. 1990, c. L.15, s. 3 (1). Real Property Limitations Act, R.S.O. 1990, Chapter L.15, Consolidation Period: From December 15, 2009 to the e-Laws currency date. 36 A. G. of Nova Scotia v. Alan R. Brill, date Sept. 9, 2010 37 The Constitutional History of England from 1760 to 1860, p. 53
38 "And whereas great Frauds and Abuses have been committed in purchasing Lands of the Indians, to the great Prejudice of our Interests. and to the great Dissatisfaction of the said Indians: In order, therefore, to prevent such Irregularities for the future, and to the end that the Indians may be convinced of our Justice and determined Resolution to remove all reasonable Cause of Discontent, We do. with the Advice of our Privy Council strictly enjoin and require. that no private Person do presume to make any purchase from the said Indians of any Lands reserved to the said Indians, within those parts of our Colonies where, We have thought proper to allow Settlement: but that. if at any Time any of the Said Indians should be inclined to dispose of the said Lands, the same shall be Purchased only for Us, in our Name, at some public Meeting or Assembly of the said Indians, to be held for that Purpose by the Governor or Commander in Chief of our Colony respectively within which they shall lie: and in case they shall lie within the limits of any Proprietary Government. they shall be purchased only for the Use and in the name of such Proprietaries, conformable to such Directions and Instructions as We or they shall think proper to give for that Purpose:" Royal Proclamation, 1763
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In taking possession of Canada, the Imperial Government took steps to avoid the inconveniences caused by large concessions of land, which gave rise to much trouble in the other British colonies in North America. For that purpose, the Lords Commissioners of Trade and Plantations in 1763 sent instructions to the Canadian Government, limiting grants of public land.39: 40
"To every Person having the Rank of a Field Officer--5,000 Acres. To every Captain--3,000 Acres. To every Subaltern or Staff Officer,--2,000 Acres. To every Non-Commission Officer,--200 Acres . To every Private Man--50 Acres. We do likewise authorize and require the Governors and Commanders in Chief of all our said Colonies upon the Continent of North America to grant the like Quantities of Land, and upon the same conditions, to such reduced Officers of our Navy of like Rank as served on board our Ships of War in North America at the times of the Reduction of Louisbourg and Quebec in the late War, and who shall personally apply to our respective Governors for such Grants."41
"The object of this liberality was to induce English settlers from adjacent provinces to settle in Canada. According to these instructions, all Crown lands were to be granted in free tenure and without any other condition than the reservation of the right of the Crown to resume possession of the whole or part of the land granted in the event of its being required for military purposes."42
THE QUEBEC ACT, 1774
In 1774 the Imperial government had to pass a constitution for the protection of the Catholic, as well as, the Protestant Religions. This constitution also had to respect the different types of property laws and the rights of the people. It was decided that there must certain clauses for the Catholic and/or French residents of the Colony and that there also must be certain clauses for the Protestant and/or British. There was also
39 LIST OF LANDS GRANTED BY THE CROWN IN THE PROVINCE OF QUEBEC FROM 1763 TO 31st DECEMBER 1890. PRINTED BY ORDER OF THE LEGISLATURE - QUEBEC . By CHARLES FRANCOIS LANGLOIS, PRINTER TO HER MOST EXCELLENT MAJESTY THE QUEEN, 1891
40 "We have also thought fit, with the advice of our Privy Council as aforesaid, to give unto the Governors and Councils of our said Three new Colonies, upon the Continent full Power and Authority to settle and agree with the Inhabitants of our said new Colonies or with any other Persons who shall resort thereto, for such Lands. Tenements and Hereditaments, as are now or hereafter shall be in our Power to dispose of; and them to grant to any such Person or Persons upon such Terms, and under such moderate Quit-Rents, Services and Acknowledgments, as have been appointed and settled in our other Colonies, and under such other Conditions as shall appear to us to be necessary and expedient for the Advantage of the Grantees, and the Improvement and settlement of our said Colonies. " Royal Proclamation, 1763
41 Royal Proclamation, 1763
42 LIST OF LANDS GRANTED BY THE CROWN IN THE PROVINCE OF QUEBEC FROM 1763 TO 31st DECEMBER 1890. PRINTED BY ORDER OF THE LEGISLATURE - QUEBEC . By CHARLES FRANCOIS LANGLOIS, PRINTER TO HER MOST EXCELLENT MAJESTY THE QUEEN, 1891
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protection for the private property owner, his heirs and assigns. There was also a clause in reference to "districts" and taxation.
"III. Provided always, and be it enacted, That nothing in this Act contained shall extend, or be construed to extend, to make void, or to vary or alter any Right, Title or Possession, derived under any Grant, Conveyance, or otherwise nowsoever, of or to any Lands within the said Province, or the Provinces thereto adjoining; but that the same shall remain and be in Force, and have Effect, as if this Act had never been made.
"IX.43 Provided always, That nothing in this Act contained shall extend, or be construed to extend, to any Lands that have been granted by his Majesty, or shall hereafter be granted by his Majesty, his Heirs and Successors, to be holden in free and common Soccage.
"X.44 Provided also, That it shall and may be lawful to and for every Person that is Owner of any Lands, Goods, or Credits, in the said Province, and that has a Right to alienate the said Lands, Goods, or Credits, in his or her Lifetime, by Deed of Sale, Gift, or otherwise, to devise or bequeath the same at his or her Death by his or her last Will and Testament; any Law, Usage, or Custom, heretofore or now prevailing in the Province, to the contrary 45hereof in any-wise notwithstanding; such Will being executed either according to the Laws of Canada, or according to the Forms prescribed by the Laws of England.
"Xlll.46 Provided always, That nothing in this Act contained shall extend to authorize or impower the said legislative Council to lay any Taxes or Duties within the said Province, such Rates and Taxes only excepted as the Inhabitants of any Town or District within the said Province may be authorized by the said Council to assess, levy, and apply, within the said Town or District 47for the Purpose of making Roads, erecting and repairing public Buildings, or for any other Purpose respecting the local Convenience and Economy of such Town or District.
With the confusion of the differing protections and rights, it was thought that the province of Quebec should be divided into two separate provinces and that the laws involving property and civil rights should be those in the nature of England's. This was accomplished with the Constitution of 1792.
THE CONSTITUTION OF 1792
43 Not to extend to lands granted by his Majesty in common soccage.
44 Owner of goods may alienate the same by will &c.
45 If executed according to the laws of Canada.
46 The council are not empowered to lay taxes.
47 Public roads or buildings excepted
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The Constitution of 1792 was created to divide Canada into 2 separate provinces, Upper and Lower Canada and introduced English law pertaining to “property and civil rights”.
“[18] …English law was received into the Province of Ontario in 1792 through An Act Making More Effectual Provision for the Government of the Province of Quebec in North America and to Introduce the English Law as the Rule of Decision in all Matters of Controversy, Relative to Property and Civil Rights, [19] Stats. Upp. Can. 1792 (32 Geo. III), c. 1 (“the 1792 Act”). The explicit intent of the 1792 Act was to incorporate into Ontario law, the laws of England in relation to property and civil rights.48
It also supported the granted and patented private property rights. Under section nine of the act is says:
IX. Provided always, That nothing in this act contained shall extend, or be construed to extend, to any lands that have been granted by his Majesty, or shall hereafter be granted by his Majesty, his heirs and successors, to be holden in free and common soccage.”49
An explanation of FREE SOCAGE: Socage in which the services were both certain and honorable. By the statute 12 Car. 2. ch. 24 (1660), all tenures by knight service were, with minor exceptions, converted into free socage. 50
A definition of “free and common socage” is needed to fully understand the limitations of the legislature.
“Freehold tenure is without any incidents or obligations for the benefit of the Crown. All lands granted by the Crown in fee simple are granted in free and common socage - freehold tenure. A fee simple may be transferred without licence or fine and the new owner holds from the Crown in the same manner as the previous tenant held from the Crown.”51
48 Ontario Supreme Court, Polewsky v. Home Hardware Stores Ltd., Date: 1999-10-12
49 The Statutes of The Province of Upper Canada; together with such British Statutes, Ordinances of Quebec, and Proclamations, as Relate to the Said Province. Revised and Printed for, and Published by Hugh C. Thomson and James MacFarlane. Revised by James Nickalls, Junior, Esquire, Barrister at Law. Kingston, U.C. Printed by Francis M. Hill. 1831, p. 6
50 Black’s Law Dictionary, 9th Edition, 2009, p. 1517.
51 Ownership and Title to Real Property, http://lawstudies.wikidot.com/laws3112-lecture-3
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And then in 1840, more confusion as the Imperial Parliament decided to re-unite Upper and Lower Canada into one province, again. They thought this might bring about better co-operation but instead created a provincial parliament that didn’t get things done.
THE UNION ACT, 1840
In 1839, Lord Durham made the recommendation that Upper and Lower Canada should be re-united based on the problems which were stemming between the English and French having difficulty reconciling their differences. These differences ranged from control of the revenue and supplies, to differences merely based on the two different races which eventually, in 1837-38, resulted in a rebellion. Lord Durham was appointed Governor-General and he was to find ways of amending the Constitution of 1791 to create an atmosphere of co-operation between the two provinces. The result of his commission was to recommend that the two provinces become one large province and the Union Act of 1840 was passed by the Imperial Parliament.52
"C A P. XXXV. An Act to Re-unite the Provinces of Upper and Lower Canada, and for the Government of Canada. [23rd July, 1840.]
WHEREAS it is necessary that Provision be made for the good Government of the Provinces of Upper Canada and Lower Canada, in such Manner as may secure the Rights and Liberties and promote the Interests of all Classes of Her Majesty's Subjects within the same: And whereas to this end it is expedient that the said Provinces be re-united and form One Province for the Purposes of Executive Government and Legislation; Be it therefore enacted by the Queen's most Excellent Majesty, by and with the Advice and Consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the Authority of the same, That is shall be lawful for Her Majesty, with the Advice of Her Privy Council, to declare, or to authorize the Governor General of the Two Provinces of Upper Canada and Lower Canada to declare, by Proclamation, that the said Provinces, upon, from, and after a certain Day in such Proclamation to be appointed, which Day shall be within Fifteen Calendar Months next after the passing of this Act, shall form and be One Province, under the name of the Province of Canada, and thenceforth the said Provinces shall constitute and be One Province, under the name aforesaid, upon, from, and after the Day so appointed.
XXVIII. And be it enacted, That no Person shall be capable of being elected a Member of the Legislative Assembly of the Province of Canada who shall not be
52 The Constitution of Canada J.E.C. Munro, of the Middle Temple, Barrister at Law, Profession of Law Owens College, Victoria University, Cambridge: At the University Press, 1889, p. 18 – 21
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legally of equitably seised as a Free-hold, for his own Use and Benefit53, of Lands or Tenements held in Free and Common Socage54, or seised55 or possessed56, for his own Use and Benefit, or Lands or Tenements held in Fief or in Roture, within the said Province of Canada,…
LVIII. And be it enacted, That it shall be lawful for the Governor, by an Instrument or Instruments to be issued by him for that purpose under the Great Seal of the Province, to constitute Townships in those parts of the Province of Canada in which Townships are not already constituted, and to fix the Mets and Bounds thereof, and to provide for the Election and appointment of Township Officers therein, who shall exercise the powers as are exercised by the like Officers in the Townships already constituted in that part of the Province of Canada now called Upper Canada; and every such Instrument shall be published by Proclamation, and shall have the Force of Law from a Day to be named in each case in such Proclamation.
LIX. And be it enacted, That all Powers and Authorities expressed in this Act to be given to the Governor of the Province of Canada shall be exercised by such Governor in conformity with and subject to such Orders, Instructions, and Directions as Her Majesty shall from Time to Time see fit to make or issue." 57
Also to create stability for the residents of this large province a Municipal Act was enacted in 1841.
53 CESTUI QUE USE – In old law tracts cestiu a que use. Previously to the Statute 27 Hen. IIII., c. 10 (usually called the Statute of Uses), the use was an equitable or beneficial interest enjoyed by the cestui que use, distinct from the legal property in the land, which was held by the feoffee to uses. The Statute of Uses destroyed the intervening estate of the feoffee to uses, and transferred the possession to the cestui que use, converting his equitable or beneficial interest into a legal estate; thus the use and possession being incorporated, the separate existence of the use is virtually extinguished, and he, who was called the cestui qui use before the statute, is now, to all intents and purposes, the legal owner, the use being executed by him. Thus a conveyance transmitting the possession to A., to the use of B., A.'s estate (feoffee to uses) is destroyed by the statute, the possession is given to B. (cestui que use) in whom the legal estate is vested. Dictionary of Jurisprudence, J.J.S. Wharton, Esq., 1847-48, pg. 97
54 FREE SOCAGE – Socage in which the services were both certain and honorable. By the statute 12 Car. 2. ch. 24 (1660), all tenures by knight service were, with minor exceptions, converted into free socage. Black’s Law Dictionary, 9th Edition, 2009.
55 SEISED IN DEMESNE AS OF FEE – Is the expression used to describe the ownership so called of "an estate in fee simple in possession in a corporeal hereditament," – the word "seised" expressing the "seisin" or owner's possession of a freehold property; the phrase "in demesne" or "in his demesne" (in dominico suo), signifying that he is seised as owner of the land itself, and not merely of the seignory or services; and the concluding words "as of fee" importing that he is seised of an estate of inheritance in fee simple (Co. Litt. 17 a; Fleta, 1. 5, c. 5, s. 18; Bract. 4. 1, tr. 5 c. 2, s. 2). The New Law Dictionary and Institute of the Whole Law, Archibald Brown, Barrister-at-Law, M.A., Edin, and Oxon., and B.C.L. Oxon….1880, p. 480.
56 POSSESSION - Black’s Law Dictionary 9th Ed. 2009, p. 1281. 1. The fact of having or holding property in one’s power; the exercise of dominion over property. 2. The right under which one may exercise control over something to the exclusion of all others; the continuing exercise of a claim to the exclusive use of a material object. 3. Civil Law. The detention or use of a physical thing with the intent to hold it as one’s own. 4. Something that a person owns or controls. 57 The Provincial Statutes of Canada. Vol. I. Printed by Stewart Derbishire & George Desbarats, Law Printer to the Queen's Most Excellent Majesty. Anno Domini, 1841. p. iii.
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THE BRITISH NORTH AMERICA ACT, 1867 (BNA)
Through the British North America Act, 1867, (BNA), the Dominion of Canada was created. This was the original 3 provinces being amalgamated into one colony and then that colony was divided into 4 new provinces. These consisted of New Brunswick, Nova Scotia, Ontario and Quebec. During this process the original provinces gave up their authority to the Dominion government leaving them with little or no authority58. The BNA created certain areas which either the Federal or provincial governments would have protection from each other.
Under the Preamble of the BNA it expresses that our constitution and our country is have a constitution “similar in Principle to that of the United Kingdom59. There are a number of different documents which make up our constitution, including, but not limited to: Magna Carta, the Petition of Rights 162860, the Statute of Monopolies 162361, the 62 63 Abolition of the Star Chamber Act 1641 , Act for the Limitation of Forests 1641 , the
58 Whether wisely or not, they surrendered a large portion of their rights to the Federal Government at Ottawa to be there determined upon. Any attempted assumption of authority beyond these subjects, if not vetoed by the Governor- General, is liable to be declared unconstitutional by the Provincial or by the Dominion Courts. ” A Manual of Government in Canada; or, the Principles and Institutions of our Federal and Provincial Constitutions, D. A. O’Sullivan, Esq., M.A., of Osgoode Hall, Barrister-at-law, 1879, p. 121.
59 British North America Act, 1867, Preamble.
60 The Petition of Right…XI. All which they most humbly pray of your most excellent Majesty as their rights and liberties, according to the laws and statutes of this realm; and that your Majesty would also vouchsafe to declare, that the awards, doings, and proceedings, to the prejudice of your people in any of the premises, shall not be drawn hereafter into consequence or example; and that your Majesty would be also graciously pleased, for the further comfort and safety of your people, to declare your royal will and pleasure, that in the things aforesaid all your officers and ministers shall serve you according to the laws and statutes of this realm, as they tender the honor of your Majesty, and the prosperity of this kingdom. [Which Petition being read the 2nd of June 1628, the King’s answer was thus delivered unto it. Soit droit fait comme il est desire.]60 (“Let right be done as it is desired.”) The Constitutional Documents of the Puritan Revolution, 1628 – 1660, S. R. Gardiner p. 1-5
61 Oakley and (1) ANIMAL LTD, (2) H YOUNG HOLDINGS PLC, (3) H YOUNG (OPERATIONS) LIMITED, Neutral Citation Number: [2005] EWHC 210 (Ch) at 23. It is 350 years and a civil war too late for the Queen's courts to broaden the prerogative. The limits within which the executive government may impose obligations or restraints upon citizens of the United Kingdom without any statutory authority are now well settled and incapable of extension. In particular, as respects monopolies the Crown's claim to a general right to the monopoly of any activity was denied and circumscribed by the Statute of Monopolies, 1623 . Today, save in so far as the power is preserved by the Statute of Monopolies, or created by other statutes, the executive government has no constitutional right either itself to exercise through its agents or to confer upon other persons a monopoly of any form of activity.
62 II. And forasmuch as all matters examinable or determinable before the said judges, or in the court commonly called the star-chamber, may have their proper remedy and redress, and their due punishment and correction, by the common law of the land, and in the ordinary course of justice elsewhere; (2) and forasmuch as the reasons and motives inducing the erection and continuance of that court do now cease: (3) and the proceedings, censures and decrees of that court, have by experience been found to be an intolerable burthen to the subjects, and the means to introduce an arbitrary power and government; (4) and forasmuch as the council-table hath of late times assumed unto it self a power to intermeddle in civil causes and matters only of private interest between party and party, and have adventured to determine of the estates and liberties of the subject, contrary to the law of the land and the rights and privileges of the subject, by which great and manifold mischief and inconveniencies have arisen and happened, and much incertainty by means of such- proceedings hath been conceived concerning mens rights and estates; for settling whereof, and preventing the like in time to come, Abolition of the Star Chamber, 1641.
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Bill of Rights 1689-9064, the Coronation Oath Act 1689-9065, the Settlement Act 1689- 9066, the Nullum Tempus Act 1769 (An Act for the general quiet of the Subjects against all Pretences of Concealment whatsoever)67, etc. Suffice it to say there is only to be common law between the citizens and the government68, therefore the federal government is to be the supreme legislator, whereas the provinces are to legislate for only what belongs to it as a quasi corporation for its own revenues, and even this is limited.
Under section 3 of the Planning Act, the Provincial Policy Statement is enacted. Under this document, there is a statement of: “The Provincial Policy Statement provides policy direction on matters of "provincial interest related to land use planning and development.” Provincial Interests only involve what belongs to the Province as a
63 II. And be it further enacted by the authority aforesaid, that no place or places within this realm of England…,…or regard made within the space of sixty years next before the first year of His Majesty’s reign that now is, shall be at any time hereafter judged, deemed, or taken to be forest, or within the bounds or meets of the forest; but the same shall be from henceforth for ever hereafter disafforested, and freed, and exempted from the forest laws…”Act for the Limitation of Forests. August 7, 1641. 16 Car. I. cap. 16 Statutes of the Realm, v. 119.
64 BILL OF RIGHTS, 1689 Whereas the late King James the Second, by the assistance of divers evil counsellors, judges and ministers employed by him, did endeavour to subvert and extirpate the Protestant religion and the laws and liberties of this kingdom;
65 Whereas by the Law and Ancient Usage of this Realm the Kings and Queens thereof have taken a Solemn Oath upon the Evangelists at Their respective Coronations to maintain the Statutes Laws and Customs of the said Realm and all the People and Inhabitants thereof in their Spiritual and Civil Rights and Properties But forasmuch as the Oath itself on such Occasion Administered hath heretofore been framed in doubtful Words and Expressions with relation to ancient Laws and Constitutions at this time unknown To the end therefore that One Uniform Oath may be in all Times to come taken by the Kings and Queens of this Realm and to Them respectively Administered at the times of Their and every of Their Coronation. Coronation Oath Act 1688
66 [15] In the present case all parties acknowledge that if the impugned portions of the Act of Settlement have constitutional status then the matter is not justiciable. It is well settled that the Charter cannot be used to amend or trump another part of our constitution (See Reference Re Bill 30, an Act to amend the Education Act (Ontario), 1987 CanLII 65 (SCC), [1987] 1 S.C.R. 1148 at 1197 and New Brunswick Broadcasting Co. v. Nova Scotia, supra at 373). [17] The impugned portions of the Act of Settlement are a key element of the rules governing succession to the British Crown. They were enacted following a long period of civil and religious strife. They confirmed that only the Protestant heirs of Princess Sophia, the Electoress of Hanover, are entitled to assume the throne. The Act of Settlement together with other statutes establish the legitimate heir to the British Crown. (See also Bill of Rights of 1689, (Eng.) 1 Will. & Mar. sess.2, c.2; Crown and Parliament Recognition Act, 1689, (Eng.) 2 Will. & Mar. chap.2; Act of Union (Scotland), 1706, chap.11, Article ii; Union with England, 1706, chap.7, Article ii; Treaty of Union (Ireland), 1800, chap.67, Article II;. Accession Declaration Act, 1910, (U.K.) chap.29; Coronation Oath Act, 1688, (Eng.) 1 Will. & Mar. chap.6, s. 3.) O’Donohue v. Canada, 2003 CanLII 41404 (ON SCCOURT FILE NO.: 01-CV-217147CM DATE: 20030626
67 Supreme Court of Canada - Hamilton v. The King, [1917] S.C.R. 331, Date: 1917-02-06
68 “Hon. Mr. Loranger, QC. , Supreme Court of Canada, Mercer v. Attorney General for Ontario, 5 S.C.R. 538, Date: 1881-11-14. “In political as in civil law, in the absence of any provision specially applicable to the subject, recourse must be had to the common law, to ascertain the relations between the government and the governed.”” COMPARATIVE CONSTITUTIONAL LAW (U.S./CANADA/AUSTRALIA), 2009, Professor Helen Irving. “An appreciation of Canadian federalism requires a brief historic overview of the significance of the concept of “property and civil rights.” The phrase includes all laws governing the relationships between individuals …as opposed to the law which governs the relationship between citizens and government.”
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"quasi corporation"69 and does not involve the private right70, title71 or interest72 established in private property.
The statement “in the province” can be deceiving. Like the Municipalities the province is merely a “corporation”. It was created by “letters patent” and it governs its own constitution and creates laws (by-laws) just like any other corporation. The Lieutenant Governor73 is the quasi “president” of the provincial corporation, whereas the
69 “We now come to the provisions respecting the provincial constitutions. They are specific; the others are general. The effect, therefore, was to create each province a body politic—a quasi corporation,” Mercer v. Attorney General for Ontario, 5 S.C.R. 538, at [542]
70 RIGHT (Black’s Law Dictionary, 9th Edition, 2009, p. 1436) – 1. That which is proper under law, morality, or ethics . 2. Something that is due to a person by just claim, legal guarantee, or moral principle. 3. A law
71 TITLE - Black’s Law Dictionary, 9th Edition, 2009, p. 1622 – 1. The union of all elements (as ownership, possession, and custody) constituting the legal right to control and dispose of property; the legal link between a person who owns property and the property itself. 2. Legal evidence of a person’s ownership rights in property; an instrument (such as a deed) that constitutes such evidence.
72 INTEREST (Black’s Law Dictionary, 9th Edition, 2009, p. 885) – 1. The object of any human desire; especially advantage or profit of a financial nature. 2. A legal share in something; all or part of a legal or equitable claim to or right in property
73 Lieutenant Governor Act R.S.O. 1990, CHAPTER L.13 Consolidation Period: From December 31, 1990 to the e-Laws currency date. No amendments. Powers vested in Lieutenant Governor 1. In matters within the jurisdiction of the Legislature, all powers, authorities and functions that, in respect of like matters, were vested in or exercisable by the governors or lieutenant governors of the several provinces now forming part of Canada or any of the provinces, under commissions, instructions or otherwise, at or before the passing of the Constitution Act, 1867, are, so far as the Legislature has power thus to enact, vested in and exercisable by the Lieutenant Governor or Administrator for the time being of the Province of Ontario, in the name of Her Majesty or otherwise as the case requires, subject always to the Royal Prerogative as heretofore. R.S.O. 1990, c. L.13, s. 1. Power to remit sentences 2. Section 1 shall be deemed to include the power of commuting and remitting sentences for offences against the laws of Ontario or offences over which the legislative authority of the Province of Ontario extends. R.S.O. 1990, c. L.13, s. 2. Lieutenant Governor a corporation sole 3. The Lieutenant Governor for the time being is a corporation sole, and all bonds, recognizances and other instruments by law required to be taken to the Lieutenant Governor in his or her public capacity shall be taken to him or her by the name of the office of Lieutenant Governor, and may be sued for and recovered by him or her by the name of the office of Lieutenant Governor, and the same shall not in any case go to or vest in the personal representatives of the Lieutenant Governor during whose government the same were so taken. R.S.O. 1990, c. L.13, s. 3. Power to appoint deputies for certain purposes 4. The Lieutenant Governor may, with the advice and consent of the Executive Council, from time to time appoint any person or persons, jointly or severally, to be his or her deputy or deputies for Ontario or any part or parts
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Premier could be considered the CEO of the company. These provisions are in the British North America Act, 1867 (BNA), under “executive power” 74 which is the same as any other corporation. thereof, for the purpose of executing marriage licences, money warrants and commissions under any Act of the Legislature. R.S.O. 1990, c. L.13, s. 4.
74 The British North America Act, 1867 V. PROVINCIAL CONSTITUTIONS EXECUTIVE POWER Appointment of Lieutenant Governors of Provinces 58. For each Province there shall be an Officer, styled the Lieutenant Governor, appointed by the Governor General in Council by Instrument under the Great Seal of Canada. Tenure of Office of Lieutenant Governor 59. A Lieutenant Governor shall hold Office during the Pleasure of the Governor General; but any Lieutenant Governor appointed after the Commencement of the First Session of the Parliament of Canada shall not be removeable within Five Years from his Appointment, except for Cause assigned, which shall be communicated to him in Writing within One Month after the Order for his Removal is made, and shall be communicated by Message to the Senate and to the House of Commons within One Week thereafter if the Parliament is then sitting, and if not then within One Week after the Commencement of the next Session of the Parliament. Salaries of Lieutenant Governors 60. The Salaries of the Lieutenant Governors shall be fixed and provided by the Parliament of Canada.(30) (30) Provided for by the Salaries Act, R.S.C. 1985, c. S-3. Oaths, etc., of Lieutenant Governor 61. Every Lieutenant Governor shall, before assuming the Duties of his Office, make and subscribe before the Governor General or some Person authorized by him Oaths of Allegiance and Office similar to those taken by the Governor General. Application of Provisions referring to Lieutenant Governor 62. The Provisions of this Act referring to the Lieutenant Governor extend and apply to the Lieutenant Governor for the Time being of each Province, or other the Chief Executive Officer or Administrator for the Time being carrying on the Government of the Province, by whatever Title he is designated. Appointment of Executive Officers for Ontario and Quebec 63. The Executive Council of Ontario and of Quebec shall be composed of such Persons as the Lieutenant Governor from Time to Time thinks fit, and in the first instance of the following Officers, namely, — the Attorney General, the Secretary and Registrar of the Province, the Treasurer of the Province, the Commissioner of Crown Lands, and the Commissioner of Agriculture and Public Works, with in Quebec the Speaker of the Legislative Council and the Solicitor General.(31) (31) Now provided for in Ontario by the Executive Council Act, R.S.O. 1990, c. E.25, and in Quebec by the Executive Power Act, R.S.Q. 1977, c. E-18. Executive Government of Nova Scotia and New Brunswick 64. The Constitution of the Executive Authority in each of the Provinces of Nova Scotia and New Brunswick shall, subject to the Provisions of this Act, continue as it exists at the Union until altered under the Authority of this Act.(32) (32) A similar provision was included in each of the instruments admitting British Columbia, Prince Edward Island, and Newfoundland. The Executive Authorities for Manitoba, Alberta and Saskatchewan were established by the statutes creating those provinces. See the notes to section 5, supra. Powers to be exercised by Lieutenant Governor of Ontario or Quebec with Advice, or alone 65. All Powers, Authorities, and Functions which under any Act of the Parliament of Great Britain, or of the Parliament of the United Kingdom of Great Britain and Ireland, or of the Legislature of Upper Canada, Lower Canada, or Canada, were or are before or at the Union vested in or exerciseable by the respective Governors or Lieutenant Governors of those Provinces, with the Advice or with the Advice and Consent of the respective Executive Councils thereof, or in conjunction with those Councils, or with any Number of Members thereof, or by those Governors or Lieutenant Governors individually, shall, as far as the same are capable of being exercised after the Union in relation to the Government of Ontario and Quebec respectively, be vested in and shall or may be exercised by the Lieutenant Governor of Ontario and Quebec respectively, with the Advice or with the Advice and Consent of or in conjunction with the respective Executive Councils, or any Members thereof, or by the Lieutenant Governor individually, as the Case requires, subject nevertheless (except with respect to such as exist under Acts of the Parliament of Great Britain, or of the Parliament of the United Kingdom of Great Britain and Ireland,) to be abolished or altered by the respective Legislatures of Ontario and Quebec.(33) (33) See the notes to section 129, infra. Application of Provisions referring to Lieutenant Governor in Council 66. The Provisions of this Act referring to the Lieutenant Governor in Council shall be construed as referring to the Lieutenant Governor of the Province acting by and with the Advice of the Executive Council thereof. Administration in Absence, etc., of Lieutenant Governor 67. The Governor General in Council may from Time to Time appoint an Administrator to execute the Office and Functions of Lieutenant Governor during his Absence, Illness, or other Inability.
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The BNA includes the corporate constitution of the provinces, laying out the executive from the president to the CEO and staff. When something is “in the province” that means that it is something that is owned or belongs to, or is the property of the province/corporation. The same is said for the Municipal corporations. They are created by Letters Patent, at the petition of the "freehold"75 residents, and then become separate from the province leaving them to create by-laws for what belongs to the municipal corporation at the acceptance of the tax payers being shareholders of the corporation. Municipalities are created by the people for the benefit of the people and not the provincial "interests", other than the collection of taxation. The statement that the municipal corporations are "creatures of the province" means that the province has the authority to dissolve the municipal corporations at the petition of the freehold property owners, but does not have the authority to dictate, as the municipal corporations are to listen to their shareholders, being the residents. Regarding the statement of "in the province/municipality" being the "property of the province" a few examples are:
"Acquisition of lands in accordance with provisions of plan 25. (1) … the council may, …, acquire and hold land within the municipality for the purpose of developing any feature of the official plan, and any land so acquired or held may be sold, leased or otherwise disposed of when no longer required. R.S.O. 1990, c. P.13, s. 25 (1); 1994, c. 23, s. 17; 1996, c. 4, s. 15."76
“30. Vesting of the property in the Corporation. — All property acquired before the establishment of the Corporation, shall vest in the Corporation and all income derived and expenditure incurred in this behalf shall be brought into the books of the Corporation.”77
“8. (1) Upon the commencement of this Act— (a) all land and other property of every kind, including things in action, vested in or deemed to be vested in the State, specified in the Schedule shall, by virtue of this
Seats of Provincial Governments 68. Unless and until the Executive Government of any Province otherwise directs with respect to that Province, the Seats of Government of the Provinces shall be as follows, namely, — of Ontario, the City of Toronto; of Quebec, the City of Quebec; of Nova Scotia, the City of Halifax; and of New Brunswick, the City of Fredericton.
75 FREEHOLD – Such an interest in lands of frank-tenement as may endure not only during the owner’s life, but which is cast after his death upon the persons who successively represent him, ... Such persons are called heirs, and he whom they thus represent, the ancestor. When the interest extends beyond the ancestor’s life, it is a freehold of inheritance, and when it only endures for the ancestor’s life, it is a freehold not of inheritance. An estate to be a freehold, must possess these two qualities: 1. Immobility, that is, the property must be either land, or some interest issuing out of or annexed to land; and, 2. a sufficient legal indeterminate duration; for if the utmost period of time to which an estate can endure be fixed and determined , it cannot be a freehold. Dictionary of Jurisprudence, J.J.S. Wharton, Esq., 1847-48, pg. 268.
76 Planning Act, R.S.O. 1990, CHAPTER P.13
77 THE EMPLOYEES’ STATE INSURANCE ACT, 1948
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Act, and without further assurance, be transferred to, and shall vest in, the Corporation;” 78
“That the Act of Parliament of Canada, 31 Vict., c. 60, recognizes the view, and, while it provides for the regulation and protection of the fisheries, it does not interfere with private rights, only authorizing the granting of leases in fresh water rivers, where such rights have not already accrued, and that any lease granted by the Minister of Marine and Fisheries to fish in fresh water rivers which are not the property of the Dominion or in which the soil is not in the Dominion is illegal;”79
Please note the above statement of “in which the soil is not in the Dominion” and what does section 92 (13). Property and Civil Rights in the Province. (16). Generally all Matters of a merely local or private Nature in the Province. Private property is not “in” or does not belong to the Dominion and private property is not “in” or does not belong to the provincial/municipal corporations. And to truly understand how this works, one should look to section 12 of the BNA.
All Powers under Acts to be exercised by Governor General with Advice of Privy Council, or alone 12. All Powers, Authorities, and Functions which under any Act of the Parliament of Great Britain, or of the Parliament of the United Kingdom of Great Britain and Ireland, or of the Legislature of Upper Canada, Lower Canada, Canada, Nova Scotia, or New Brunswick, are at the Union vested in…”80
The entire idea of the Union or amalgamation under one superior corporate entity was the provinces’ goal. That’s even expressed in the preamble of the BNA.
“WHEREAS the Provinces of Canada, Nova Scotia, and New Brunswick have expressed their Desire to be federally united into One Dominion under the Crown of the United Kingdom of Great Britain and Ireland, with a Constitution similar in Principle to that of the United Kingdom”81
78 Minister of Finance (Incorporation) Act, Laws of Trinidad and Tobago, 1973 p. 6
79 Constitution of Canada. The B.N.A. Act, 1867; Its Interpretation, etc., p. 165 80 BNA, 1867 All Powers under Acts to be exercised by Governor General with Advice of Privy Council, or alone 12. All Powers, Authorities, and Functions which under any Act of the Parliament of Great Britain, or of the Parliament of the United Kingdom of Great Britain and Ireland, or of the Legislature of Upper Canada, Lower Canada, Canada, Nova Scotia, or New Brunswick, are at the Union vested in or exerciseable by the respective Governors or Lieutenant Governors of those Provinces, with the Advice, or with the Advice and Consent, of the respective Executive Councils thereof, or in conjunction with those Councils, or with any Number of Members thereof, or by those Governors or Lieutenant Governors individually, shall, as far as the same continue in existence and capable of being exercised after the Union in relation to the Government of Canada, be vested in and exerciseable by the Governor General, with the Advice or with the Advice and Consent of or in conjunction with the Queen's Privy Council for Canada, or any Members thereof, or by the Governor General individually, as the Case requires, subject nevertheless (except with respect to such as exist under Acts of the Parliament of Great Britain or of the Parliament of the United Kingdom of Great Britain and Ireland) to be abolished or altered by the Parliament of Canada.(7) (7) See the note to section 129, infra.
81 BNA, 1867.
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As the provinces are corporations, now we must to look at what exactly is the provincial property.
Property in Lands, Mines, etc. 109. All Lands, Mines, Minerals, and Royalties belonging to the several Provinces of Canada, Nova Scotia, and New Brunswick at the Union, and all Sums then due or payable for such Lands, Mines, Minerals, or Royalties, shall belong to the several Provinces of Ontario, Quebec, Nova Scotia, and New Brunswick in which the same are situate or arise, subject to any Trusts existing in respect thereof, and to any Interest other than that of the Province in the same.82
Under section 109 the Provinces own the revenues that can be created from public/Crown lands being sold or used to create a revenue (i.e. timber licenses on Crown land), the mines and minerals that are reserved in the land patents, and the royalties from things like escheats. Private property is covered under the “subject to any Trusts existing in respect thereof, and to any Interest other than that of the Province in the same”. The draft of the BNA was created at the Quebec Conference in 1864. In that document was the instruction and the intent of section 109. It stated:
"56. All lands, mines, minerals and royalties vested in Her Majesty in the Provinces of Upper Canada, Lower Canada, Nova Scotia, New Brunswick and Prince Edward Island, for the use of such Provinces, shall belong to the Local Government of the territory in which the same are so situate; subject to any trusts that may exist in respect to any of such lands or to any interest of other persons in respect of the same."83
This meaning that the province cannot interfere with any other persons "interests" and/or any "trusts" not of the province. “The Queen in right of Ontario has no right, title or interest in and to the lands described… ”84. The Queen/Crown has removed the crown domain through the letters patent, ergo there is no authority to be transferred to the province/municipal corporations. The definition of "interests" is:
"INTEREST (Black’s Law Dictionary, 9th Edition, 2009, p. 885) – 1. The object of any human desire; especially advantage or profit of a financial nature. 2. A legal share in something; all or part of a legal or equitable claim to or right in property
82 (57) Manitoba, Alberta and Saskatchewan were placed in the same position as the original provinces by the Constitution Act, 1930, 20-21 Geo. V, c. 26 (U.K.). These matters were dealt with in respect of British Columbia by the British Columbia Terms of Union and also in part by the Constitution Act, 1930. Newfoundland was also placed in the same position by the Newfoundland Act, 12-13 Geo. V1, c. 22 (U.K.). With respect to Prince Edward Island, see the Schedule to the Prince Edward Island Terms of Union.
83 Quebec Conference - The Seventy-Two Resolutions - [authenticated October 29, 1864]
84 Ontario (Attorney General) v. Rowntree Beach Assn., 1994, Conclusion, Section [123]
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privileges, powers and immunities, distributively, it refers to any one right, privilege, power or immunity."
There is the argument that one may make when there is the statement that one lives "in the province" or "lives in a municipality". This is a location and you and your property are "situate"85 so that there is a known location for determining the lot, concession, township and then province. This is needed for registering the property for the determination of what tracts of land have been alienated from the Crown domain.
Section 110.86 all the debts of the provinces was transferred to the Federal Government at the time of union, so that the provinces wouldn’t have the liability. But the provinces were allowed to utilize the assets that were derived from those debts. So if there was an outstanding debt that was created because of something constructed for the province, the Federal Government took on the debt, but the province got to use whatever was constructed to create revenue.
Section 11387, were the entities that, when Quebec and Ontario were united, prior to the BNA, created and received revenues from. They got to keep these entities and it was up to those two provinces to decide what they were going to do with them.
Section 11788 “The several Provinces shall retain all their respective Public Property not otherwise disposed of in this Act, subject to the Right of Canada to assume any Lands or Public Property required for Fortifications or for the Defence of the Country.” is very telling.
“Since Magna Carta the estate of a subject in lands or buildings has been protected against the prerogative of the Crown.”89. This statement was from A.G. v.
85 SITUATE – Verb 1. situate - determine or indicate the place, site, or limits of, as if by an instrument or by a survey; "Our sense of sight enables us to locate objects in space"; "Locate the boundaries of the property" Based on WordNet 3.0, Farlex clipart collection. © 2003-2012 Princeton University, Farlex Inc. http://www.thefreedictionary.com/situate
86 BNA, 1867. Assets connected with Provincial Debts 110. All Assets connected with such Portions of the Public Debt of each Province as are assumed by that Province shall belong to that Province.
87 Assets of Ontario and Quebec 113. The Assets enumerated in the Fourth Schedule to this Act belonging at the Union to the Province of Canada shall be the Property of Ontario and Quebec conjointly. THE FOURTH SCHEDULE, ASSETS TO BE THE PROPERTY OF ONTARIO AND QUEBEC CONJOINTLY, Upper Canada Building Fund., Lunatic Asylums., Normal School., Court Houses in Aylmer.Montreal.Kamouraska. } Lower Canada Law Society, Upper Canada., Montreal Turnpike Trust., University Permanent Fund., Royal Institution., Consolidated Municipal Loan Fund, Upper Canada., Consolidated Municipal Loan Fund, Lower Canada., Agricultural Society, Upper Canada., Lower Canada Legislative Grant., Quebec Fire Loan., Temiscouata Advance Account., Quebec Turnpike Trust., Education—East., Building and Jury Fund, Lower Canada., Municipalities Fund., Lower Canada Superior Education Income Fund.
88 Provincial Public Property 117. The several Provinces shall retain all their respective Public Property not otherwise disposed of in this Act, subject to the Right of Canada to assume any Lands or Public Property required for Fortifications or for the Defence of the Country.
89 A.G. v. DeKeyer’s Royal Hotel, 1920, p. 28
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DeKeyer’s Royal Hotel, in 1920. There were provisions that “private property” could only be used or regulated with fair compensation being paid, even during a time of war. This supports the difference from “provincial/public property” and “private property” and the need for a statement that the General Government could use “provincial property” (owned by the province) at times of war, for the defence of the Province and the Dominion. There was/is a separate statute in relation to private property90.
Section 12591 says that federal property and provincial property are exempt from taxation…again, it stands to reason that if we are paying taxes that we must be owners of private property. In 1883 the Privy Council in Mercer explains.
“There is only one clause in the Act by which any sources of revenue appear to be distinctly reserved to the Provinces, viz., the 109th section: -- “All lands, mines, minerals, and royalties belonging to the several Provinces of Canada, Nova Scotia, and New Brunswick, at the Union, and all sums then due or payable for such lands, mines, minerals, or royalties, shall belong to the several Provinces…, in which the same are situate or arise, subject to any trusts existing in respect thereof, and to any interest other than that of the Province in the same.’ The Provincial Legislatures are not, in terms, here mentioned; but the words “shall belong to the several Provinces,” are obviously equivalent to those used in Section 126, “are by this Act reserved to the respective Governments or Legislatures of the Provinces.” That they do not apply to all lands held as private property at the time of Union seems clear from the corresponding language of Section 125, “No lands or property belonging to Canada, or any Province, shall be liable to taxation:” where public property only must be intended. They evidently means lands, &c., which were, at the time of the Union, in some sense, and to extent, publici juris; and, in this respect, they receive illustration from another section, the 117th (which their Lordships do not regard as otherwise very material), “The several Provinces shall retain all their respective public property, not otherwise disposed of by this Act, subject to the right of Canada to assume any lands or public property required for fortifications, or for the defence of the country…The extent of the Provincial power of legislation over “property and civil rights in the Province” cannot be ascertained without at the same time ascertaining the power and rights of the Dominion under Sections 91 and 102, and therefore cannot throw much light upon the extent of the exceptions and reservations now in question…But it was insisted, that a line was drawn at the date of the Union, and that the words were not sufficient to reserve any lands afterwards escheated, which at the time of the Union were in private hands, and did not then belong to the Crown. If the word “lands” had stood alone, it might have been difficult to resist the force of this argument. It would have been difficult to say the right of the lord paramount to future escheats was “land belonging to him,” at a time when the fee
90 Defence Act, 1842.
91 Exemption of Public Lands, etc. 125. No Lands or Property belonging to Canada or any Province shall be liable to Taxation.
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simple92 was still in the freeholder93. If capable of being described as an interest in land, it was certainly not a present proprietary right94 to the land itself. The word “lands,” however, does not here stand alone…It is true (as observed in some of the opinions of the majority of the Judges in the Supreme Court of Canada) that this word, royalties, in mining grants or leases (whether granted by the Crown or by a subject),…Another Nova Scotia Act of 1849, surrendering to the Provincial Legislature the territorial and casual revenues of the Crown arising within the Province, was also referred to by Mr. Justice Gwynne. But the terms of that Act were very similar to those now under consideration; and if “royalties,” in the context which we have here to consider, do not necessarily and solely mean reddenda in mining grants or leases, neither may they in that statute…The general subject of the whole section is of a high political nature; it is the attribution of Royal territorial rights, for purposes of revenue and government, to the Provinces in which they are situate, or arise.”95
Section 14396, the property referred to is “Records, Books, and Documents of the Province of Canada as he thinks fit shall be appropriated and delivered either to Ontario or to Quebec”, so these two provinces would know what they own and it is only the documents and even that is questionable as wills, deeds, etc., are laws unto themselves and are created for the people by the people…so it isn’t really the documents and it is not necessarily what those documents pertain to.
Point in fact from the Mercer case Provincial Property is as follows:
“Now, what lands, mines, minerals and royalties can with propriety, having regard to the manner in which those words have been used in other legislative language above quoted, be said to have belonged to the several provinces of Canada, Nova Scotia and New Brunswick at the Union? None at all, it is plain, in any other sense
92 “Fee Simple the largest interest in land known to our law, for it is the entire property therein.” Dictionary of Jurispurdence, J.J.S. Wharton, Esq., 1847-48, pg. 263
93 Freehold, such an interest in lands of frank-tenement as may endure not only during the owner’s life, but which is cast after his death upon the persons who successively represent hi, according to certain rules elsewhere explained. Such persons are called heirs, and he whom they thus represent, the ancestor. When the interest extends beyond the ancestor’s life, it is a freehold of inheritance, and when it only endures for the ancestor’s life, it is a freehold not of inheritance. An estate to be a freehold, must posses these two qualities: 1. Immobility, that is, the property must be either land, or some interest issuing out of or annexed to land; and, 2. a sufficient legal indeterminate duration; for if the utmost period of time to which an estate can endure be fixed and determined , it cannot be a freehold. Dictionary of Jurispurdence, J.J.S. Wharton, Esq., 1847-48, pg. 268
94 He who has a “property” in anything. of Jurisprudence, J.J.S. Wharton, Esq., 1847-48, pg. 550
95 Mercer v. A. G. Ont. 1883, Privy Council
96 Division of Records 143. The Governor General in Council may from Time to Time order that such and so many of the Records, Books, and Documents of the Province of Canada as he thinks fit shall be appropriated and delivered either to Ontario or to Quebec, and the same shall thenceforth be the Property of that Province; and any Copy thereof or Extract therefrom, duly certified by the Officer having charge of the Original thereof, shall be admitted as Evidence.(74) (74) Probably spent. Two orders were made under this section on January 24, 1868.
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than that the revenues arising from such properties belonging to the Crown had been made part of the consolidated funds of the old provinces now constituting the Dominion of Canada, for the public uses of these provinces. “Lands” which had been already granted by the Crown and were at the time of the Union vested in the grantees thereof, or in their heirs or assigns, cannot with any degree of propriety be said to have been lands “belonging to the several provinces of, &c., &c., at the Union,”… and within the limits of which province the property now in question is situate, declared by 12 Vic., c. 31, that the term “public lands” in the province, which is but an equivalent expression to “lands belonging to the provinces at the Union” did not comprehend lands accruing to the Crown by escheat or forfeiture, and that they did comprehend only the ungranted lands of the Crown in the province, in which sense they have ever since been understood. These waste ungranted lands of the Crown, the revenues derived from which constituted part of the consolidated funds of the provinces before the Union, were, as we know, appropriated to the public uses of [Page 707] the provinces; but the lands so appropriated did not constitute all the ungranted lands of the Crown in the provinces. There were other lands of the Crown, the monies arising from the sale or other disposition of which did not form part of such consolidated funds; these lands were set apart and appropriated for the actual residence thereon and occupation thereof by certain Indian tribes by whom they were surrendered to and became vested in the Crown, and others were surrendered by the Indians to and vested in the Crown for the purpose of being granted by the Crown and that the monies arising therefrom should be applied for the benefit of the Indians. These lands are by item 24 of sec. 91, placed under the control of the Dominion Parliament. The custom in the grants by the Crown of these lands was the same as in the grants of all other Crown lands, namely, to reserve all mines and minerals, but the reservation thereof would accrue, as was provided with respect to the monies arising from the sale of the lands, to the benefit of the Indians for whose benefit the lands were set apart; such mines and minerals, or the royalties accruing from the disposition thereof, could not have been appropriated to the public uses of the provinces, the “lands” therefore which are referred to in sec. 109 of the British North America Act can only be construed to mean those ungranted or public lands belonging to the Crown within the several provinces of Canada, Nova Scotia and New Brunswick, the revenues derived from which before and at the Union effected by the British North America Act had been surrendered by the Crown and made part of the consolidated funds of the provinces; and the words “mines, minerals and royalties” being in the same 109th sec. added to the word “lands,” this latter word must there be construed in a limited sense, that is to say, as exclusive of the “mines and minerals”97
Under section 92 (2) of the British North America Act, 1867 (BNA), the province has the authority to tax directly, and in having that authority it transfers that authority to the municipal corporation and it is collecting that tax as a revenue source for both the
97 Gwynne, J., at 706, Supreme Court of Canada, Mercer v. Attorney General for Ontario, 5 S.C.R. 538, Date: 1881- 11-14
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province and the municipal corporations. For example, from page 125 of The British North America Act, 1867: Its Interpretation, Joesph Doutre, Q.C.
In Severn v. The Queen (2 Can. S. C. 77), Strong, J., held:-- “That, the Legislature of the Province of Ontario has no authority to raise a revenue from brewers by requiring them to take out licenses to carry on their business and dispose of their beer within the Province. (Overruling Regina v. Taylor, 36 U.C., Q.B., p. 201) The Chief Justice Richards said: That, under the B.N.A. Act of 1867, the power to regulate Trade and Commerce rests exclusively with the Dominion Parliament, as also the right to raise money by the mode of indirect taxation, except so far as the same may be expressly given to the Provincial Legislatures. That, making it necessary to take out and pay for a license to sell, by wholesale or retail, spirituous, fermented or other manufactured liquors, is raising money by the indirect mode of taxation. That, all authority given to the Provincial Legislatures to exercise the power of raising money by the indirect mode of taxation is contained in Sec. 92 of the B.N.A. Act, which gives power to legislate on the subject of: s.s. 8 Municipal institutions in the Province; s.s. 9. Shop, saloon, tavern, auctioneer and other licenses in order to the raising of a revenue, for provincial, local or municipal purposes. That it was not intended by the words “other licenses” to enlarge the powers referred to, beyond shop, saloon, and tavern licenses, in the direction of licenses to effect the general purposes of trade and commerce and the levying of indirect taxes, but rather to limit them to the licenses which might be required for objects which were purely municipal or local in their character… I consider the power, now claimed, to interfere with the paramount authority of the Dominion Parliament in matters of trade and commerce and indirect taxation; and so pregnant with evil, and so contrary to what appears to me to be the manifest intention of the framers of the B.N.A. Act, that I cannot come to the conclusion that it is conferred by the language cited as giving that power. By the interpretation I give to the words “and other licenses,” limiting them to the other licenses which are of a local and municipal character, and giving full force to the words, shop, saloon, tavern and auctioneer licenses, I think I carry out the intention of the B.N.A. Act and make all the powers harmonize.”
In other words, the province and the municipal corporations are only to license, and it is not meant to create massive regulation it is merely to license, shops, taverns, saloons and auctioneers. It would seem that they do not have the authority to expand this to permits to do things on private property such as permits from Conservation Authorities, Niagara Escarpment Committees, etc. The licenses for “shops, taverns, saloons and auctioneers” is a form of revenue, but that isn’t to restrict these entities to the point that they cannot function as businesses.
92 (13) of the B.N.A. grants the province authority over its own property. 92. (16) is all things merely local and private in nature in the province. There is speculation that the aforementioned sections are the provincial government’s ability to implement what is
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referred to as “good government”98. The ability for the province to implement “good government” was removed under the B.N.A. ergo the province has no authority to implement criteria pertaining to authority under the disguise of “good government.” The province, not having authority99 over private property cannot transfer authority to any other entities, be that corporations, counties, municipal corporations, etc., as the Crown alienated its authority and something that has been alienated cannot be transferred twice, to two different parties100.
“Civil Rights” of 92 (13). Under Section 92 (13) it says: EXCLUSIVE POWERS OF PROVINCIAL LEGISLATURES Subjects of exclusive Provincial Legislation 92. In each Province the Legislature may exclusively make Laws in relation to Matters coming within the Classes of Subjects next hereinafter enumerated; that is to say, — 101 13. Property and Civil Rights in the Province.
And as Judge Gwynne states in Mercer:
“…its design as to “properties,” as to every thing else which is appropriated to the use of the provinces and therefore placed under the legislative control of the provincial legislatures, is to specify those properties which being still, as before,
98 “There is a great difference, therefore, between the present and past position of these Provinces. Formerly they were Colonies of the Empire, and possessed Governors or Lieutenant Governors, who were the immediate representatives of the Crown in their Provinces. Now their chief Executive officers are members of the Colonial Administration staff, and are but Lieutenants of the Governor-General of Canada; and the Provinces are no longer Colonies, but Provinces of a Colony. Under the former Constitution they had, subject to Imperial authority, the right to makes laws for the peace, order and good government of their Provinces; now their Legislative power is limited to a prescribed set of subjects; and though they are supreme within these Constitutional limits, it seems that they cannot go beyond them. Whether wisely or not, they surrendered a large portion of their rights to the Federal Government at Ottawa to be there determined upon. Any attempted assumption of authority beyond these subjects, if not vetoed by the Governor-General, is liable to be declared unconstitutional by the Provincial or by the Dominion Courts. ” A Manual of Government in Canada; or, the Principles and Institutions of our Federal and Provincial Constitutions, D. A. O’Sullivan, Esq., M.A., of Osgoode Hall, Barrister-at-law, 1879, p. 120-121
99 It determines, in the most unequivocal manner, that the grant of a state is a contract … and that it implies a contract not to re-assume the rights granted. A fortiori, the doctrine applies to a charter or grant from the king. Trustees of Dartmouth College v. Woodward, 4 Wheat. 518 1819. FORTIOA - (Black’s Law Dictionary, 9th Edition, 2009, p. 725) – 1. Force. Refers to force used by an accessory to allow the principal to commit a crime. 2. Power, dominion, or jurisdiction. (same as 2. In the Dictionary of Jurispurdence, J.J.S. Wharton, Esq., 1847-48, pg. 264).
100 To this grant, or this franchise, the parties are, the king, and the persons for whose benefit it is created, or trustees for them. The assent of both is necessary. The subjects of the grant are not only privileges and immunities, but property, or, which is the same thing, a capacity to acquire and to hold property in perpetuity. Certain obligations are created, binding both on the grantor and the grantees. On the part of the former, it amounts to an extinguishment of the king's prerogative to bestow the same identical franchise on another corporate body, because it would prejudice his prior grant. It implies, therefore, a contract not to re-assert the right to grant the franchise to another, or to impair it…. And a grant of franchises is not, in point of principle, distinguishable from a grant of any other property. Trustees of Dartmouth College v. Woodward, 4 Wheat. 518 1819.
101 Gwynne, J., at 702, Supreme Court of Canada, Mercer v. Attorney General for Ontario, 5 S.C.R. 538, Date: 1881- 11-14.
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vested in the Crown shall be under the exclusive control of the provincial legislatures.”102
In D.A. O'Sullivan's103, instruction book, "Government in Canada: The Principles and Institutions of our Federal and Provincial Constitutions. The B.N.A. Act, 1867, Compared with the United States Constitution, A Sketch of the Constitutional History of Canada" it clearly explains the sections needed to understand sections 92.13, etc. His dissertation is included to remove any confusion in regards to the limited authority of the provincial government.
"CHAPTER X.
Dominion assets, public works schedule, duties, revenues, stocks—Debts, consolidated revenue fund, charges on it—Provincial assets, lands, mines, etc.
TWENTY-FIVE sections of the B.N.A. Act are taken up with the property and liabilities of the Dominion and the provinces. These are sections 102 to 126, both included. Other sections, such as the 91st and the 92nd, containing the distribution of powers, must also be looked at in connection with this matter. The several provinces retained all their respective public property not otherwise disposed of by the Act, allowing only the right to the Dominion to assume any lands or public property required for fortifications or for the defence of the country.104 It is likely that lands assumed in this way would have to be purchased as in the case of appropriated lands. The 13th sub-section of the 92nd section gives to the provinces property and civil rights, while the 1st. sub-section of the 91st. section of the Act gives to the Dominion the public debt and property. The public works and property of each province, as enumerated in the following schedule, are the property of Canada, within the meaning of this sub-section:105 (1). Canals, with lands and water power connected therewith. (2). Public harbours. (3). Lighthouses and piers, and Sable Island. (4). Steamboats, dredges and public vessels. (5). Rivers and lake improvements. (6). Railways and railway stocks, mortgages, and other debts due by railway companies. (7). Military roads.
102 Gwynne, J., at 702, Supreme Court of Canada, Mercer v. Attorney General for Ontario, 5 S.C.R. 538, Date: 1881- 11-14
103 M.A., D.C.L. of Osgoode Hall, Barrister-at-Law, Scholar-in-Law in University of Toronto, Hon. D.C.L. Laval. 104 Section 117, Mr. Justice Burton says in the Mercer case, "I find no warrant in the Act for the assertion so frequently made that all rights of property, not expressly given to the province, pass to the Dominion. On the contrary, I take it to be clear that the provinces retained all property and rights which were previously vested in them, under the constitutional Acts then in force, except those which by the confederation Act are taken from them and transferred to the Dominion."
105 Sec. 108
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(8) Custom houses, post offices, and all other public buildings, except such as the government of Canada appropriates for the use of the provincial legislatures and governments. (9). Property transferred by the imperial government, and known as ordnance property. (10). Armouries, drill sheds, military clothing, munitions of war, and lands set apart for general public purposes.
Canada took over all duties and revenues of the old provinces except such portions thereof as were by the Act reserved to their legislatures; and there was formed out of them a consolidated revenue fund.106 All stocks, cash, bankers' balances and securities for money belonging to each province at the time of the union, unless expressly reserved by the Act, were also placed to the credit of Canada, and went to reduce the provincial debts of the respective provinces.107 Although Canada assumed the debts and liabilities of the provinces,108 they were settled at a certain sum, and if beyond, the provinces were to pay Canada interest on the excess at 5 per centum per annum. These sums were as follows:109 Ontario and Quebec, liable to Canada, If their debt was over $65,500,000 Nova Scotia $ 8,000,000 New Brunswick $ 7,000,000
If the debts of the latter two provinces were not up to the respective amounts, they were to get the same rate of interest in half yearly payments in advance on the difference. Canada was to pay towards the expenses of the provincial governments the following sums: Ontario $80,000 Quebec $70,000 Nova Scotia $60,000 New Brunswick $50,000 Besides an annual grant determinable on the population, and a special grant to New Brunswick.110 This was the basis of the consolidated revenue fund of Canada in 1867; and the balance of the duties and revenues not appropriated were, along with all duties and revenues raised in accordance with special provincial powers, formed into provincial funds called the consolidated revenue fund of the province.
106 Sec. 102. See the able argument, by the Hon. W. Macdougall, C. B., reported in the Mercer Escheat case, 1881.
107 Sec. 107.
108 Sec. 111.
109 Sec. 112, 114, 115, 116, 117. See R.S.C. cap. 46, as to additional subsidies, increasing these figures about one- eighth.
110 Sec. 119.
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The expenses of the public service of Canada are paid out of the consolidated revenue fund. The first charge on it is the costs, charges and expenses incident to its collection, management and receipt. The interest on the public provincial debts is the second; and the third is the Governor-General's salary, fixed at £10,000 sterling, or such other sum as the parliament of Canada may determine. After these payments are made, the balance is appropriated to the public service of Canada, with no particular order of preference.111 The Governor-General in council, unless parliament otherwise directs, orders the form and manner of all payments or discharges of liabilities, under the Act of 1867 in regard to Canada and its provinces in these matters. These funds are each year augmented in various ways. Large sums are paid in from the customs, revenue and public land departments, by means of tariffs, excise or other duties, by the sale of lands, by fees from the post office department, and from the various other departments of state. If the receipts from these sources are in advance of the amount asked for in the supply bill, (which sets out the expenditure of the country for the fiscal year,) then there is no necessity of direct taxation, or specific grants by parliament. The ways and means used for raising the supplies from the budget of the year; and when it is considered that in Canada the supplies voted by parliament usually amount to a great many millions of dollars annually as the expenses of the government from July to July, the task which the minister has in making a satisfactory budget speech is not at all an easy one. The provinces, besides what had been already referred to, retained "all lands, mines, minerals and royalties," and "all sums then due or payable for such lands, mines, minerals or royalties," subject, of course, to any trust or interest of any person or against the provinces.112 All assets connected with such portions of the public debt of each province as are assumed by that province, shall belong to that province.113 Canada gave up to Ontario and Quebec conjointly the following properties belonging to the late province of Canada: Upper Canada building fund. Lunatic asylums. Normal schools. Court houses in Lower Canada Aylmer, Lower Canada Montreal, Lower Canada Kamarouska, Lower Canada Law society, Upper Canada Montreal turnpike trust. University permanent fund. Royal Institution. Consolidated municipal loan fund, Upper Canada.
111 Sec. 103, 104, 105, 106.
112 Sec. 109
113 Sec. 110
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Consolidated municipal loan fund, Lower Canada. Agricultural society, Upper Canada. Lower Canada legislative grant. Quebec fire loan. Temiscouata advance account. Quebec turnpike trust. Education – east. Building and jury fund, Lower Canada. Municipalities fund. Lower Canada superior education income fund.
The Dominion government has exclusive legislative authority over the lands reserved to the Indians, but it is not yet definitely settled whether or not the provinces are entitled to be considered owners of unpatented lands occupied by Indians within their limits.114 It has been decided that lands reverting to the crown under the doctrine of escheat come under the control of the provinces.115 The assets of the Dominion at confederation were very inconsiderable compared with the vast resources she now possesses. The addition of two colonies was not of very great importance, but the purchase by the government of Canada of the Hudson Bay territory shortly after 1867 placed a large portion of the continent at her disposal—a tract of country 1,200 miles long and 500 miles broad.116 The imperial Act was passed in 1868, (32 and 33 Vic. cap. 105,) and in the following year the payment of the purchase money to the Hudson Bay Company, £300,000, was guaranteed by another imperial Act. By an order in council of the 23rd. of June, 1870, the North Western territory and Rupert's Land were admitted and became part of the Dominion.
Property in the Province BNA Act, 1867 section 92. 13
CHAPTER XVIII.
PROVINCIAL COURTS, CIVIL PROCEDURE, OFFICERS OF THE LAW. Procedure in civil matters belong to the provinces – In criminal matters to the Dominion – Want of uniformity in laws and procedure as to property and civil rights, old divisions of English courts, appeal courts – Equity and common law courts, cases heard in first instance, superior and inferior courts – Object of procedure and pleadings – Writs, statements, record, issue, -- Trial, verdict, execution – Officers of the law, attorneys, solicitors, counsel, notaries, sheriffs, coroners.
The Courts.
114 Regina v. The St. Catharines Milling Co., 103 A.P. 148.
115 Mercer v. The Attorney General of Ontario, L.R. 8 App. 767.
116 This purchase and the purchase of Louisiana from France by the United States of America, in 1803, may be regarded as the two largest in history.
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By the 14th sub-section of section 92 of the B.N.A. Act: The administration of justice in the provinces, including the constitution, maintenance, and organization of provincial courts both of civil and criminal jurisdiction, and including procedure in civil matters in these courts, forms a class of subjects within the exclusive control of the provincial legislatures. The 27th sub- section of section 91 allots "the procedure in criminal matters" to the parliament of Canada. The provinces having therefore to deal with procedure in civil matters, it is to be expected that there will be great diversity in civil trials. There is not much uniformity in the provincial laws; but the framers of the Act were in hopes that the English speaking provinces might make provision for uniform laws as to property and civil rights, and they accordingly inserted a section to meet that expectation.(a)117 In Quebec where the old French law – the Coutume de Paris is the basis of all civil matters, and where a code obtains as to procedure, with no great likelihood of any change, the Act is silent as to the prospect of uniformity or as to the prospect of the judges for that province being appointed from the bar of any other province.(b)118 The remaining provinces have a system of laws and a procedure and practice founded on English law; and it may be possible to give the unprofessional reader some idea of the courts and of the general procedure in a civil case such as obtains in England and in some of the provinces. In all the provinces there is some ultimate court of appeal to which suitors who are not satisfied with the decisions of the superior courts of law and equity can resort for a more authoritative disposition of their cases. This corresponds to the house of lords court in England, which hears and determines appeals from the English courts. Formerly there were three common law courts, the Queen's bench, the common pleas and the exchequer court, and one court of equity called the high court of chancery. The exchequer court was not usually transplanted into colonies but the other three were generally reproduced. The colonial courts of appeal were sometimes composed of the judges of all the superior courts sitting as one court, and sometimes composed of other judges as is the present court of appeal for Ontario. An appeal lay from these courts of ultimate authority in the province to the judicial committee in England, the ultimate authority for such matters in the empire. The provincial courts of appeal do not as a rule entertain cases in the first instance – except some election petitions; they sit to determine appeals from lower courts. The superior courts of law and equity in Ontario, following the analogous legislation in England, have been merged into one high court of justice with divisions in it named after the time-honoured nomenclature of Queen's bench, chancery and common pleas, and with changes very important in the constitution of these courts. Formerly the chancery court had its own special work; equity as distinguished from law was a source of perplexity in procedure and interposed a division of some sort in the administration of common justice. Anciently in England the common please heard civil disputes only; the Queen's bench criminal matters exclusively, and the exchequer court concerned itself
117 (a) Sec. 94
118 (b) Sec. 97 and 98
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solely with the revenue. Many of these distinctions have been removed, and generally each of these divisions has now the power of any one of them. These are the superior courts – they sit for the whole province or country, and two or more judges sit in term, at stated times in the year, to review cases heard in the first instance by a single judge. The court, wherever a case is heard in the first instance before a single judge and with or without a jury, is properly known as the assize court, or the court of nisi prius. (c)119 From the fact that the criminal cases are head at the same time and place and the gaol emptied, this court is also called the court of oyer and terminer and general gaol delivery. In these courts the evidence is heard and the judgment or verdict or sentence rendered of pronounced at the time. The courts in term sit in review of the decisions thus arrived at; the provincial court of appeal, or the supreme court of Canada at Ottawa may review the judgments of the court in term. Besides these courts of general jurisdiction there are county courts having to deal with local cases of less importance; and there are also smaller courts graded down to those of justice of the peace or police magistrate who have jurisdiction over a few civil matters. These courts are of inferior jurisdiction and they are in most cases controlled in a modified way by the superior courts. Writs may issue out of the superior courts directing the lower courts by mandamus to do certain things, or by procedendo to continue in the prescribed course. These extraordinary remedies are however very rarely resorted to, both because the lower courts keep within their own constitutions and duties, and the other courts will not interfere unless in the plainest cases. The county courts and their judges also hear criminal cases of a less grave nature than those tried at the assizes— these are the quarter sessions of the general sessions of the peace of the county judge's criminal court. But the sessions justices of the peace may and do sit with the county judge for the disposal of offenders. These are the courts of all purposes, and for all laws; and the provincial legislatures have control over their constitution maintenance and organization. The Dominion government controls the criminal procedure; that will be referred to in the next chapter. A word or two may be said of procedure in civil matters; but as it varies in all the provinces, only a few general features can be referred to.
119 In England the court of assizes was a court of 12 judges – three from each of the four divisions already mentioned – empowered to try twice in the year their respective circuits, all causes civil and criminal in every county in England, except London and Middlesex only. There were six circuits, and two judges were appointed for each. Under the commission of assize they took the verdicts of a peculiar species of jury called an assize, and summoned for the trail of landed disputes. The judges sat as well under four other commissions. (1) A court of gaol delivery. (2) The session of peace. (3) The court of oyer and terminer and (4) The court of nisi prius. The first of these and the court of oyer and terminer dealt with criminal cases, to deliver prisoners, and to "enquire, hear and determine" all treasons, felonies and misdemeanors on indictment found at the same assize. The session of the peace was held four times in the year, hearing cases under authority of Acts of parliament and the commission of peace. Several justices may sit in this and in the court of yer and terminer but there must be one of the quorum in each court. This was the origin of the phrase "justices of the quorum," – the commission being addressed to the assize judges one whom would take the particular circuit. In London and Middlesex the commission of assize directed the trial of all matters in dispute at Westminster Hall, and a writ of nisi prius, (unless before) was attached to the commission. This commission called upon all suitors in the kingdom to repair thither for the disposition of these cases, unless before a certain day, a court for the trial would be held in the circuit towns. The court held in the circuits in this way was the court of nisi prius, and it dates back to the 13th year of Edward I. Formerly there were nine courts of common law; the same number of ecclesiastical courts; fourteen courts of special jurisdiction; sixteen of criminal jurisdiction; besides equity, military and maritime courts.
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PROCEDURE The procedure in any action is the mode by which the dispute between two or more parties is brought into court to be tried and settled. The case of each side is set out in what is called a pleading; these pleadings come into court in the form of a record—which is the guide of the presiding judge as to the matter is dispute. To get the parties before the court with a full and complete statement of their claims and defences is the object of all pleadings; and it is substantially the same under every form of procedure though the practice of the courts in each particular, may be as different as can be imagined. In the old chancery procedure the plaintiff formulated all his charges and grievances against the defendants in an elaborate document called a bill of complaint, depositing one copy with the court for the hearing and serving others on the defendants. The defendants replied on oath by an equally elaborately worded answer, and if the parties were at issue they went to trial. That mode of proceeding has almost disappeared and the procedure now begins generally with a writ of summons containing the substance of the plaintiff's claim, and calling on the defendant to appear within so many days. When the appearance is entered the plaintiff files and serves a statement of claim and the defendant similarly formulates his defence. When they are at issue on questions of law or of fact, the case is tried before some judge of one of the courts and a judgment entered, upon which the successful party is entitled to get the relief which the court has afforded him. The unsuccessful litigant has generally the right to appeal. If the amount at stake is considerable or if any principle of law is involved, he can usually got to the ultimate court in his own province and then to supreme court or to the judicial committee of the privy council in England. The practice and procedure in bringing any case to trial, are to elaborate to admit of any generalization beyond what has been already given. The necessary parties, the proper court, the valid legal claim or defence, the language in which it is presented to the court, are some of the difficulties in the procedure of a civil case; but assuming that a plaintiff has a good claim in law and that it is not negatived by some valid objection on the part of the defendant, the action would proceed generally in the manner indicated, until the final court was reached. The successful party then obtains payment of his claim or the performance of such duty as he was entitled to either by the submission of the opposing party, or through process by the sheriff. This process is a writ either of execution to sell goods and lands, or a writ of possession, or of assistance, or as the nature of the judgment or decree or order of the court may direct. Every person is allowed to conduct his own case in person either as plaintiff or as defendant; to issue his own writ or appear to one issued against him; he can prepare and file his pleadings and go into court and argue his own case. In other words he can be his own attorney or solicitor, and counsel.(d)120 But no one is allowed to act thus for another unless he is a member of the legal profession. He is then an officer of the court, and subject to its summary jurisdiction. He must be
120 (d) It was usual to speak of an attorney in actions at law and solicitor in chancery cases; solicitor is the term now in Ontario.
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declared by some law society specially charged with that task, to be duly qualified for such duties. The different provinces of the Dominion make their own regulations under legislative authority as to who are and who are not legally qualified practitioners, and their powers, duties and obligations. Reference will here be made to the chief officer of the law engaged in the prosecution of a suit civil or criminal, and to such persons as are entrusted with the execution of the process of the courts.
OFFICERS OF THE LAW
In Ontario the treasurer and benchers of The Law Society of Upper Canada form a corporation; and they and their successors in office regulate the government of the society, the appointment of officers, the legal education of students and the term of studentship, and the admission of applicants as barristers-at-law or as attorneys and solicitors into the law society. The benchers have the appointment of reporters to the superior courts, and fix the amount of their salaries. No one can practice at the bar in Her Majesty's courts of law or equity in Ontario unless he has been entered and admitted into the law society under its rules as a barrister. The attorney-general for the Dominion ranks first in precedence in the Ontario bar, then the attorney-general for the province, then previous attorney-generals according to seniority of appointment. After these solicitor-generals and such Queen's counsel as were appointed before confederation, in the same order. Other members rank in the order of the call to the bar. (e)121 Attorneys and solicitors are admitted into the law society under rules similar to those for barristers, and must not practice without paying an annual fee and obtaining a certificate. They may be struck off the roll of any of the courts by a superior court judge on application being made in a proper case. It is usual to speak of members of the legal profession as attorneys when conducting actions or suits in the common law courts, and solicitors in the chancery and insolvency courts. In the maritime court they are styled proctors. The profession of barrister in Ontario, though not so distinct as in England from the office of solicitor or attorney, is yet separate from the latter. Generally barristers here are members of both professions—if indeed there can be said to be two professions in the province. A number of solicitors, however, are not barristers, and therefore not entitled to plead in court. On the other hand, a barrister who is not an attorney or solicitor as well, is not privileged to act in any other capacity than that of arguing in court the cases which the attorneys or solicitors prepare for him. The judges of the superior courts are selected from barristers of at least ten years standing. In other courts the length of time varies with the court.
121 (e) The appointment of Queen's counsel in now left to the Dominion government—that is, the provincial authorities are not in the habit of making such appointments. See ante page 35.
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In Quebec all advocates, barristers, attorneys, solicitors and proctors-at-law, form a corporation called The Bar of the Province of Quebec. (f)122 A certain number of officers of each of the sections into which the corporation is divided constitutes a council with powers somewhat analogous to the Law Society of Upper Canada. They entertain matters, however, among the members of the profession not dealt with in Ontario by the Law Society, noticeably the pronouncing of censures, through the Batonnier, for any breach of discipline or action derogatory to the honour of the bar. Members may be suspended by this officer, subject to approval of the council. Notaries public in Quebec form a separate profession, being divided into a number of bodies corporate under Acts very similar to those relating to the bar of the province. Their duties not only embrace the certifying and protesting of documents, but includes nearly all of what is understood in English practice by conveyancing. In Ontario a notary public is appointed by the Lieutenant-Governor, and may protest bills of exchange and promissory notes; and may draw, pass, keep and issue all deeds and contracts, charter parties, and other mercantile transactions in this province, may give certificates as to copies of instruments, and has some other undefined duties. They form no profession and are part of none, though the commission is usually granted to members of the legal profession as of course. Any person not a barrister or attorney must, however, pass an examination as to his qualification for the office before his county judge, or before some one appointed for that purpose by the Lieutenant-Governor, and produce a certificate that on examination he is found qualified for the office; and further, that in the examiner's opinion a notary public is needed in the place where the applicant intends to carry on business. Formerly they could administer oaths or affirmations only under certain statutes; usually the courts of Queen's Bench and Common Pleas appoint commissioners for taking affidavits for this purpose, who have power within the county in which they reside. Under the Ontario Act of 1885 (cap. 16), all notaries public now appointed or to be appointed hereafter have all the powers of commissioners to take affidavits and declarations in all courts in any part of the province. They are now officers of the high court of justice for Ontario. Sheriffs are officers of the courts appointed by the Lieutenant-Governor under the great seal, one for each county, and hold office during pleasure. This office is one of the oldest and most honourable in the gift of the crown. Formerly he held a court for his shire or county, and the word sheriff means a reeve of the shire. He attended the King's court and looked after the peace of the county. He is yet the chief executive officer of the courts, attends the judge in circuit, summons the juries, has charge of the gaols, and executes all writs and sentences of the courts up to the execution of a criminal—the extreme penalty of the law. Where the sheriff is personally interested in a case, or where he cannot or will not execute the process of the court, the writs may be addressed to the principal coroner of the county. (g)123"124
122 See Act of 1886 of Quebec, consolidating the law on this subject. 123 See Office of Coroner, etc., post.
124 Government in Canada: The Principles and Institutions of our Federal and Provincial Constitutions.
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The Constitution Act, 1930 spelled out what the Provinces were entitled to for property. This property that was transferred at the time of Union was the property that the provinces had authority to legislate for. In the 1930 Constitution it stated that under section thirty of the Manitoba Act, 1870, “it was provided that all ungranted or waste lands in the Province should be vested in the Crown and administered by the Government of Canada for the purposes of the Dominion, subject to the conditions and stipulations contained in the Agreement for the surrender of Rupert's Land by the Hudson's Bay Company to Her Majesty:125 And ”…a transfer would be made by Canada to the Province of the unalienated natural resources within the boundaries of the Province subject to any trust existing in respect thereof and without prejudice to any interest other than that of the Crown in the same…”126
The transfer of the Public Lands had restrictions on the Province expressing what they did and did not have “legislative authority” over. The provinces are to honor each contract, in regards to past patents and they were to administer for future grants/patents, but only at the time of issuance. When the future grants/patents, issued by the province were created, the legislation applied to those grants/patents were to be consistent. It would be the “rules” governing the new issuances, expressed in the reservations, conditions, etc. and these terms were to be upheld.
THE CANADA ACT, 1982
The Canada Act of 1982 is a culmination of Trudeau's Charter of Rights, his form of constitutional obligations and authorities of the provincial and federal governments, inclusive of all previous constitutions, particularly the BNA, 1867. There has been much stated about there not being property rights protected under the 1982 charter and yet Canadians do have private property rights protected in "pre-charter" documents. If private property rights weren't so protected there wouldn't be a need for an Expropriation Act127.
"McGILL LAW JOURNAL - Property, Planning and the Charter, by Robert G. Doumani [1] and Jane Matthews Glenn [2] The authors examine the impact of the Canadian Charter of Rights and Freedoms upon the powers of municipalities to control the use of land. Despite the absence of specific entrenchment of property rights in the Charter, the authors
The B.N.A. Act, 1867, Compared with the United States Constitution, A Sketch of the Constitutional History of Canada; By D.A. O'Sullivan, M.A., D.C.L. of Osgoode Hall, Barrister-at-Law, Scholar-in-Law in University of Toronto, Hon. D.C.L. Laval., 1887, page 114- 196
125 British North America Act, 1867 and Constitution of 1930, p. 2
126 Ibid. p. 3
127 SUPREME COURT OF CANADA. Antrim Truck Centre Ltd. v. Ontario (Transportation, DATE: 20130307 , DOCKET: 34413.
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contend that these rights are nevertheless significantly protected in pre-Charter constitutional and administrative law. Entrenchment of a protection-of property clause in the Charter would make little difference to the effective protection of property rights, particularly in light of the moderating effect of s. 1 of the Charter, the possibility of s. 33 overrides of Charter rights, and the pre-existing protection of property rights in other human rights instruments recognized in Canadian law. They argue, further, that existing provisions of the Charter do serve to enhance indirectly the protection of property rights insofar as property concerns may relate to life, liberty and security of the person (s. 7) and equality (s. 15). P. 1036128
These property rights are also protected by the Bill of Rights, 1689, the Petition of Right, 1628, etc. In 1948 Year Book of the Canadian Bar Association and the Minutes of Proceedings of the Thirtieth Annual Meeting 166-69 (1948), at 166, it states:
"those freedoms and rights which under our democratic form of government are considered to be inalienable…If then the freedoms and rights with which we are concerned are really inalienable, it must be because they are or ought to be beyond the reach of legislative action. …Therefore it becomes immediately apparent that if those freedoms and rights are inalienable it must be because they are already part of the constitution and cannot be conferred by legislative enactment. The moment it is conceded that they are within the power of gift by the legislature it must be conceded that they are vulnerable to further legislative action and can be withdrawn at any time. .. what was needed was not so much a Bill of Rights, but rather something in the nature of a declaration of rights of what freedoms and rights were inherent in the Constitution. For, such a declaration would have a dual effect: (1) it would put moral restraint on the legislature itself, and (2) it would arm the courts with something with which to enforce the restraint should the legislature refuse to honor its moral obligation.”
And in some cases, not only are the courts failing, but so are the legal counsel chosen to represent both the government and the individual. From what was expressed in 2004, it would seem that the law schools are not preparing our legal advisors with adequate instruction to give competent legal advice. This is very concerning and has been a concern for some, in the Upper Canada Law Society, previous to 2004.129 This places all legal advice in question if said legal advice is not supportive of the Common
128 [1] "Of the firm of Gardiner, Roberts, Toronto, Canada. [2] "Of the Faculty of Law and the School of Urban Planning, McGill University, Montreal, Canada. This article is a revised version of a paper on the subject "The Canadian Charter of Rights and Freedoms and Municipal Planning" presented to the Canadian Urban and Housing Studies Conference, University of Winnipeg, February 1988. ©McGill Law Journal 1989 Revue de droit de McGill 1036 [Vol. 34]
129 LAURA LEGGE TRANSCRIPT. LAURA LEGGE INTERVIEW #1. DATE: JULY 6, 2004 , PLACE: LEGGE AND LEGGE, BARRISTERS AND SOLICITORS, 65 ST. CLAIR AVE. E., TORONTO. INTERVIEWER: ALISON FORREST. MEDIA: 2 MINI-DISKS APPROX. 58:23 AND 13:42 MINUTES IN LENGTH AND ONE MINI-CASSETTE OF SAME. Page 90 – 100. http://www.lsuc.on.ca/uploadedFiles/PDC/CR_and_A/Virtual_Archive/LAURA%20LEGGE%20TRANSCRIPTS(1).pdf
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Law rights and the constitutional rights of the people. There is also the issue that no one is, including the majority of legal counsel, reading the legislation in its entirety to know and understand the intent of the document130, taking into consideration all constitutional aspects.
130 [page619] Supreme Court of Canada in Euro- Excellence Inc. v. Kraft Canada Inc., 2007 SCC 37 (CanLII), [2007] 3 S.C.R. 20, [2007] S.C.J. No. 37, 2007 SCC 37, at para. 2: "Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament."
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THE MUNICIPALITIES
"8. Subject to the limitations in the preceding sections of this Act – in every Act to which this section applies, 2. The word "shall" shall be construed as imperative and the word "may" as permissive;"131
In Canada, unless there was a specific community created as a "Council community" which in England is generally the rule, property is privately owned. The council communities, of England, were villages, etc., being created by manors. These manors became the town sites which were council owned and regulated. In Canada villages, such as Trent132 eventually becoming Trenton, were created by an individual patentee subdividing his property, making a plan for streets, etc., and selling the lots.
These lots became private property not of133 the incorporated town, village, city and the boundaries of such properties were marked setting the boundaries which the municipality cannot have ownership or authority to implement by-laws to regulate. There is no designating authority or zoning authority granted to the municipalities unless the private property owner has dedicated their property to the municipality by grant in deed. This must be registered on title.
In England these council sites have regulatory authority over the properties as the properties are owned and leased or rented out to tenants134. An example of the creation of a Scottish village from 1769 included:
"'IV. And whereas the building of Villages135 and Houses upon entailed Estates may, in many Cases, be beneficial to the Publick, and might often be undertaken and executed, if Heirs of Entail were impowered to encourage the same, by granting long Leases of Lands for the Purpose of Building;' Be it therefore enacted
131 Short title. 1. This Act may be cited as "The Interpretation Act," or "The Interpretation Act of Ontario." Revised Statutes of Ontario, Section 1, p. 1, 1887.
132 Citation:Trenton (Town) v. B.W. Powers & Son Ltd., [1969] S.C.R. 584
133 OF: Belonging to: the lid of the box. Possessing: a man of means. Funk & Wagnalls Standard Desk Dictionary, p. 454. OF: preposition \əv, before consonants also ə; ˈəv, ˈäv\ : belonging to, relating to, or connected with (someone or something) —used to indicate that someone or something belongs to a group of people or things http://www.merriam-webster.com/dictionary/of
134 THE MAYOR AND BURGESSES OF THE LONDON BOROUGH OF LAMBETH v. HARRY LOVERIDGE. Neutral Citation Number: [2013] EWCA Civ 494
135 VILLAGE – A manor; a parish; the outpart of a parish. The following is the difference between a mansion, a village, and a manor; namely, a mansion may be one or more houses, but it must be of one dwelling house, and none near to it; for if other houses are contiguous, it is a village; and a manor may consist of several villages, or one alone. The New Law Dictionary and Institute of the Whole Law, Archibald Brown, Barrister-at-Law, M.A., Edin, and Oxon., and B.C.L. Oxon….1880, p. 691.
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by the Authority aforesaid, That it shall be, and it is hereby declared to be in the Power of every Proprietor of any entailed Estate, to grant Leases of Land for the Purpose of Building, for any Number of Years not exceeding Ninety nine Years. VI. Provided also, That the Power of Leasing hereby given shall not in any Case extend to, or be understood to comprehend a Power of Leasing, or Setting in Tack, the Manor-place136, Officer-houses, Gardens, Orchards of Inclosures adjacent to the Manor-place, which have usually been in the natural Possession for the Proprietor, or have not been usually let for a longer Term than Seven Years, when the Heir in Possession was of lawful Age; and that no Lease of Lands shall be granted under the Authority of this Act, for the Purpose of building Villages or Houses within Three Hundred Yards of the Manor-place in the natural Possession of the Proprietor.137
And in 2013 in "THE MAYOR AND BURGESSES OF THE LONDON BOROUGH OF LAMBETH v. HARRY LOVERIDGE". In this case the local council being the "landlord" unlawfully evicted a secure tenant from a residential accommodation. An example of how council community or council controlled housing works in England the following section of the case expresses:
"Secure tenants of local authority landlords have a large measure of security of tenure, and a degree of de facto rent protection. Assured tenants have considerable security of tenure, but no rent protection. Assured shorthold tenants have virtually none. It is also common ground that, if a local authority landlord sells or transfers the reversion on a secure tenancy to a private landlord, this converts the secure tenancy into an assured tenancy, thereby exposing the tenant to having to pay a market rent: … Such sales are uncommon, and need ministerial consent, but it is agreed that such is their effect. Secure tenancies from local authorities are thus inherently vulnerable to this, albeit unlikely, change in the benefits thereby obtained."138
In Canada, the majority of properties are privately owned, unless there has been, by means of purchase, lease or expropriation, social housing created as expressed later in this document.
One of the first Municipal Acts, in Canada, was the Municipal Act of 1841. Much hasn't changed since its inception.
136 MANOR – A Noble sort of fee, granted partly to tenants for certain services to be performed, and partly to reserved to the use of the lord's family. The tenementales were granted out; the dominicales were reserved to the lord; the whole fee was termed a lordship or barony; and the court appendant to the manor the Court of the Baron. The New Law Dictionary and Institute of the Whole Law, Archibald Brown, Barrister-at-Law, M.A., Edin, and Oxon., and B.C.L. Oxon….1880, p. 402
137 An Act to encourage the Improvement of Lands, Tenements, and Hereditaments in that Part of Great Britain, called Scotland, held under Settlement of Strict Entail. 1769 The statutes at large of England page 145
138 THE MAYOR AND BURGESSES OF THE LONDON BOROUGH OF LAMBETH v. HARRY LOVERIDGE. Neutral Citation Number: [2013] EWCA Civ 494
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C A P. X An Act to provide for the better internal Government of that part of this Province which formerly constituted the Province of Upper Canada, by the establishment of Local or Municipal Authorities therein.
[27th August,1841.]
WHEREAS for the better protection and management of Local interests of Her Majesty's Subjects, in that part of this Province which formerly constituted the Province of Upper Canada, it is expedient that Municipal authorities be established in the several Districts of that portion of the Province: -- Be it therefore enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Legislative Council and of the Legislative Assembly of the Province of Canada, constituted and assembled by virtue of and under the authority of an Act passed in the Parliament of the United Kingdom of Great Britain and Ireland, intituled, "An Act to re-unite the Provinces of Upper and "Lower Canada, and for the Government of Canada," and it is hereby enacted by the authority of the same, That the inhabitants of each of the Districts in that part of this Province which formerly constituted the Province of Upper Canada, and of each and every District which may be hereafter established in that portion of this Province, in the manner by law provided, shall upon, from and after, the first Monday in January, in the year of our Lord, one thousand eight hundred and forty-two, be a Body Corporate, and as such shall have perpetual succession, and a Common Seal, with power to break, renew, and alter the same at pleasure, and shall be capable in Law, of suing and being sued, and of purchasing and holding lands and tenements, situate within the limits of such District, for the use of the said inhabitants, and of making and entering into such contracts and agreements as may be necessary for the exercise of their corporate functions; and that the powers aforesaid shall be exercised by and through, and in the name of the Council of every such District respectively.
V. And be it enacted, that at the first meeting of the Inhabitant Freeholders and Householders of the several Townships, or reputed Townships, or unions of Townships and of reputed Townships, in the Districts aforesaid, respectively, to be held next after the passing of this Act, in pursuance of a certain Act of the Parliament of the late Province of Upper Canada, passed in the first year of Her Majesty's reign, and intituled An Act to alter and amend sundry Acts regulating the appointment and duties of Township Officers, there shall be elected by the said Inhabitant Freeholders and Householders, assembled and qualified in the manner prescribed by the said Act, one or two Councillors, to be members of the said District Councils, respectively, according as such local divisions as aforesaid, may be reason of the amount of their population, and according to the provisions hereinafter contained, be empowered and required to elect one of two Councillors; and at each succeeding annual meeting, to be held as aforesaid, there shall be elected by the Inhabitant Freeholders and Householders, assembled and qualified as aforesaid, a Councillor or Councillors, to supply the place of the Councillor or
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Councillors (if any there be) who, having been elected for the local division for which the meeting shall be held, shall have vacated his or their seat or seats, in the manner hereinafter provided, and a Councillor to represent such local division in the District Council, if such local division shall, since the then last election, have become entitled to elect two such Councillors instead of one.
XXXVII. And be it enacted, that it shall be lawful for the Warden of each of the said Districts, respectively, with the approbation of the Governor of the Province, for the time being, to appoint in and for his District, some fit and proper person to be and be called "The District Surveyor," whose duty it shall be to superintend the execution of all works undertaken in pursuance of any by-law of the Council of such District, and to take care of all fixed property belonging to such District, and to examine and report upon all estimates of proposed works, and to enforce the observance of all contracts for the execution of works undertaken for or on behalf of the said District, and to report annually, or oftener if need be, to the said Warden, upon the state of the works in progress, and of the fixed property belonging to such District: and all such annual or other reports shall be laid by the Warden before the District Council, at the quarterly meeting next after any such report shall have been received, together with an estimate of the probable expense of carrying on such works, and managing such fixed property, during the then current or next ensuing year…
XXXIX. And be it enacted, that is shall be lawful for each of the said Councils, in the said Districts, respectively, to make By-laws for all of any of the following purposes, that is to say: For the making, maintaining, or improving, of any new or existing road, street, or other convenient communication and means of transit within the limits of the District, or for the stopping up, altering, or diverting of any road, street or communication, within the limits aforesaid; For the erection, preservation and repair of new or existing bridges and public buildings; For the purchase of such real property, situate within the limits of each such District, respectively, as may be required for the use of the inhabitants thereof; For the sale of such part or parts of the real property belonging to such Districts, respectively, as may have ceased to be useful to the said Inhabitants; For the superintendence and management of all property belonging to the said District, respectively; For providing means for defraying such expenses of or connected with the administration of Justice within the said Districts, respectively, as are or may be hereinafter by law directed to be defrayed by the District, or out of the District Funds; For providing for the establishment of and a reasonable allowance for the support of Schools;…
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XLVII. …: And provided also, that any By-law repugnant to the law of the land, or to any of the provisions of this Act, shall be void and of no effect.139
Section XLVII is virtually the same as section 14 of the present Municipal Act, which states:
Conflict between by-law and statutes, etc. 14. (1) A by-law is without effect to the extent of any conflict with, (a) a provincial or federal Act or a regulation made under such an Act; or (b) an instrument of a legislative nature, including an order, licence or approval, made or issued under a provincial or federal Act or regulation. 2001, c. 25, s. 14. Same (2) Without restricting the generality of subsection (1), there is a conflict between a by-law of a municipality and an Act, regulation or instrument described in that subsection if the by-law frustrates the purpose of the Act, regulation or instrument. 2006, c. 32, Sched. A, s. 10.
There is nothing in the 1840 Act of Union which grants to municipalities any authority over private property or the ability to pass by-laws to plan, designate or zone private property.
Most legal counsel refer to the Baldwin Act of 1849-1850 as the first municipal act in Ontario. It is expressed, and has not changed, that the jurisdiction of the municipality is:
"[(v) The jurisdiction of every Council is not only to be confined to the Municipality the Council represents, but is to be exercised, when not otherwise provided for, by by-law. When a corporation is duly erected, the law tacitly annexes to it the power of making by-laws or private statutes140. This power is included in every act of incorporation; for, as is quaintly observed by Blackstone, "as natural reason is given to the natural body for governing it, so by-laws or statutes are a sort of political reason to govern the body politic." (1 Bl. Com. 476.)"141
A private statute cannot affect the rights of any other person or any other body politic.
139 The Provincial Statutes of Canada. Vol. I. Printed by Stewart Derbishire & George Desbarats, Law Printer to the Queen's Most Excellent Majesty. Anno Domini, 1841. p. 45.
140 Twenty-fifthly. No provision or enactment in any such Act, as aforesaid, shall affect in any manner or way whatsoever, the rights of Her Majesty, Her Heirs or Successors, unless it is expressly stated therein that Her Majesty shall be bound thereby; nor shall it affect the rights of any person or of any body politic, corporate or collegiate (such only excepted as are therein mentioned), unless such Act is a Public General Act. An Act respecting the Provincial Statutes, 1876, p. 19 – 20
141 The New Municipal Manual for Upper Canada, Containing Notes of Decided Cases and a Full Analytical Index. Edited by Robert A. Harrison, B.C.L., Barrister-At-Law, Joint Editor of "The Upper Canada Law Journal," and Editor of "The Common Law Procedure Act, 1856," &c., &c., &c. 1859, p. 83-84.
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"Every Municipal Council is under this section empowered to make regulations for the following purposes: 1. For governing the proceedings of the Council. 2. For the conduct of its members. 3. For appointing special meetings of the Council. 4. For calling such meetings. 5. And generally such other regulations as the good of the inhabitants requires. Provided there be no such regulations specifically given in this Act and provided the regulations be not contrary to law.142 It is a principle applicable to every regulation of a Municipal Corporation, first, that it be not contrary to the municipal act or law authorizing the formation of the corporation, and, secondly, that it be not contrary to the general law of the land."143 "The law of a country being as well a rule for the proceedings of corporations as for the conduct of individuals, all by-laws contrary to the common or statute law of the country are void. "All by-laws," says Hobart, " must ever be subject to the general law of the realm, and subordinate to it." (Norris v. Staps, Hob. 210.) For this reason, a by-law "impairing the obligation of contracts," or taking "private property for public uses without just compensation," would be void. (Angell & Ames on Corporations, 330.)"144
And the taking of private property for public uses also involves interfering with the private property owner's ability to use his or her property as they see fit.145
There also seems to be confusion regarding "land use" and who has the determining decision making authority.
“MNR Policy PL 4.03.01 2.0 INTRODUCTION
142 Conflict between by-law and statutes, etc. 14. (1) A by-law is without effect to the extent of any conflict with, (a) a provincial or federal Act or a regulation made under such an Act; or (b) an instrument of a legislative nature, including an order, licence or approval, made or issued under a provincial or federal Act or regulation. 2001, c. 25, s. 14. Same (2) Without restricting the generality of subsection (1), there is a conflict between a by-law of a municipality and an Act, regulation or instrument described in that subsection if the by-law frustrates the purpose of the Act, regulation or instrument. 2006, c. 32, Sched. A, s. 10.
143 The New Municipal Manual for Upper Canada, Containing Notes of Decided Cases and a Full Analytical Index. Edited by Robert A. Harrison, B.C.L., Barrister-At-Law, Joint Editor of "The Upper Canada Law Journal," and Editor of "The Common Law Procedure Act, 1856," &c., &c., &c. 1859, p. 83-84. 144 The New Municipal Manual for Upper Canada, Containing Notes of Decided Cases and a Full Analytical Index. Edited by Robert A. Harrison, B.C.L., Barrister-At-Law, Joint Editor of "The Upper Canada Law Journal," and Editor of "The Common Law Procedure Act, 1856," &c., &c., &c. 1859, p. 83-84.
145 “Notwithstanding the last mentioned fact or any of those considerations arising out of the ownership of the lands in question and the right of an owner to deal with the lands belonging to him or it, as to such owner may seem fit,…” Attorney-General for British Columbia and the Minister of Lands v. Brooks-Bidlake and Whitall, Ltd., 63 SCR 466.
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Patents for land commonly contain reservations and, in some cases, exceptions, land use conditions, qualifications or other restrictions. These restrictions have been imposed as a result of legislation and/or policy that prevailed at the time the land was granted. 4.2.2 Land Use Condition Occasional patents issued after 1959 may contain a land use condition authorized by Section 18 (Public Lands Act), to the effect of the following: ‘it is a condition of these letters patent that the land granted shall be used for ______purposes only.” Typically, land use conditions have been imposed to confine the use of lands to agricultural, conservation authority or municipal purposes.”
Any legislation, any by-law prescribing a land use condition, which is not reserved in the letters patent at the time of issuance is an expropriation. This has been stated in Queen's Park146.
146 Mr. Givens: I feel very strongly about this. I'm opposed to the whole concept. I believe that if a government wants something for public purposes, whether it is a municipal government or a provincial government, it should have to prove that it requires it and it has to go in and buy it and not confiscate it and not steal it. I think this is wrong. I think it is wrong to zone land for agriculture when we know very well that it isn't agricultural. Any lands in these areas that are being farmed are being farmed as holding operations. They're not being farmed on an economic basis. They're being farmed because people are getting concessions with respect to municipal taxes and so forth. I have here an evaluation. What is happening is that in the parkway belt, for instance, land has gone down by about 90 per cent. I have here an evaluation by the firm of Constam, Heine Associates Ltd., which is a real estate appraiser. I think the firm has done a lot of work for the government on previous occasions. It has evaluated a piece of land—I'm just using this as an example— of 100 acres and shown that the value has gone down. On June 3, 1973, it was worth $600,000 for the 100 acres and on Dec. 31, 1973, it was worth 100,000 acres. …One hundred thousand dollars for the 100 acres which means it's been downgraded from $6,000 an acre to $1,000 an acre. This is only one example. There are other examples of values which have dropped and one would think this would be a good thing—that the price of land for housing and other purposes was going down—but it isn't because outside the parkway belt the values have tripled and quadrupled. What has the government gained? What has it accomplished? None of this land will be used for housing. I think it's confiscatory. People have died and the estates pay succession duties on the basis of the land not being for agricultural purposes. People have given some of the property to their children and the Department of National Revenue has revalued the properties on the basis of not being agricultural land. I don't know how one government can base an evaluation for succession duties or for gift tax on it being non-agricultural when the provincial government comes along and says, "Your land shall be agricultural for ever and a day." There isn't even a house or a farmyard or a barnyard or anything on the property which would enable anyone to use the land for farming purposes… In some cases it's a matter of life and death when the government is going to determine what the future of these properties is going to be. It is unconscionable. It is politically amoral and this is what the government is doing. I wouldn't expect this to come from a government which is supposed to be a free enterprise party and believes in free enterprise and believes in people's rights because I believe we're living in a democracy. What constitutes freedom? The government takes away a man's property. It takes away what he's worked for and I'm not talking about the speculators. If the government worries about the speculator, tax him with a windfall tax. Put it up to 75 per cent; in this case I agree with the leader of the NDP. But there are people to whom these lands represent a lifetime of savings; indeed the property goes back two or three generations …Agricultural land or land which was worth a certain amount of money because development had come up right to one side of the street and they happened to be on the other side of the street? Mr. Speaker, I think this is horribly unfair. This business of playing Robin Hood, of stealing from those the government thinks are the rich to satisfy the poor, creates a very terrible precedent and in no other free country in the world is this permitted. In the United States, in Britain, one can't get away with it… This is stealing what people have saved up for 30, 40, maybe 50 years… The parkway-belt and the Niagara Escarpment are only two places. If the government gets away with this now, it can put in a parkway belt anywhere in the province that it wants." ONTARIO LEGISLATURE - MARCH 12, 1974, Vol. 1, p. 187
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Another example of municipal control and planning could be established in 1857. The town of Goderich decided to convey part of the municipality owned "market square property" to the United Counties of Huron and Bruce for a Court House and Public Offices. It read as follows:
C A P. LXXXVIII.
An Act to confirm a Conveyance made by the Municipal Council of the Town of Goderich of a portion of the Market Square of the said Town to the Municipal Council of the United Counties of Huron and Bruce.
[Assented to 27th May, 1857.]
WHEREAS the Canada Company did by Deed bearing date the twenty-sixth day of April, A.D. 1854, release and convey to the Municipal Council of the Town of Goderich, all that part and portion of the said Town of Goderich knows as the Market Square, for the purpose of a Market Place; And whereas the Municipal Council of the Town of Goderich did by Deed, bearing the date the tenth day of May, A.D. 1854, convey to the Municipal Council of the United Counties of Huron and Bruce a portion of the said land in the said Market Square of the Town of Goderich aforesaid, so granted to them aforesaid, for the purpose of the erecting of a Court House and Public Offices thereon and approaches thereto; And whereas the Municipal Council of the United Counties of Huron and Bruce did, under and by virtue of such deed erect a Court House and County Offices on the said portion, at an expense of Five Thousand pounds; And whereas doubts have arisen relative to the power of the Municipal Council of the Town of Goderich to make the aforesaid conveyance, and it is expedient to remove these doubts and confirm the said conveyance: Therefore, Her Majesty, by and with the advice and consent of the Legislative Council and Assembly of Canada, enacts as follows:
I. The said Deed of Conveyance made by the Municipal Council of the Town of Goderich to the Municipal Council of the United Counties of Huron and Bruce, bearing the date tenth day of May, A.D. 1854, and conveying to the said Municipal Council of the United Counties of Huron and Bruce a portion of the land in that part of the Town of Goderich known as the Market Square, and upon which portion of land a Court House and County Offices have been erected by the said Municipal Council of the United Counties of Huron and Bruce, shall be and shall be held to have been from the time of its execution, legal and valid.147
Throughout Ontario it is being demanded, by the Provincial Government, that Municipalities must create and legislate, through by-law, Official Plans. The municipalities, of which there are many (approx. 444), have been threatened with funding being withheld until they have accepted said official plans148. When AMO
147 Statutes of the Province of Canada, 1857, p. 387 th 148 The following statement will be added to the December 8 , 2005 Council minutes:
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entered into the agreement with the Federal Government was the plans they agreed to “official plans” that would infringe on a municipality’s ability to implement the responsible management of the municipal corporation149? Were the Plans to be implemented only on municipal property and was there the ability in these plans to zone150/designate private property, creating a trespass, considering there can be no designation without the property being dedicated by grant in deed151, registered on title or reserved in the Letters Patent152?
“Councillor MacIver stated that no discussion took place during the budget discussion about an official plan being created. The C.A.O. responded by reporting that an official plan works in tandem with the Sustainability Plan and without an Official Plan the Sustainability plan would not be enforceable. Councillor Oosterhof reported that the agreement signed for the gas tax requires a sustainability and terminology in the agreement refers to assumes that municipalities have an existing official plan.” DUFFERIN COUNTY COUNCIL, Thursday, January 12, 2006, The Council of the Corporation of the County of Dufferin met on Thursday, January 12, 2006 at 7:00 p.m. in the Council Chambers, Court House, 51 Zina Street, Orangeville, p. 2.
149 Municipal Act, 2001. Purposes 2. Municipalities are created by the Province of Ontario to be responsible and accountable governments with respect to matters within their jurisdiction …. 2006, c. 32, Sched. A, s. 2.
150 ZONE - verb tr.v. zoned, zon·ing, zones 1. To divide into zones. 2. To designate or mark off into zones. 3. To surround or encircle with or as if with a belt or girdle. http://www.thefreedictionary.com/zone verb [with object] 1. designate (a specific area) for use or development as a particular zone in planning: the land is zoned for housing http://oxforddictionaries.com/definition/english/zone
151 City of Flagstaff, a Body Politic, Appellant, v. George Babbitt, Jr., Appellee. Sup. Court. Aug. 6, 1968. The Court of Appeals, Stevens, J., held that actions of subdivider in testifying that he did not intend to dedicate land designated in subdivision plat as park to public, in failing to include park in dedicatory working on record plat, in establishing and grading streets and replatting lots in portion of area designated as park, and in executing easement for sewer line to city across park and paying taxes on such property were inconsistent with intent to dedicate park to public but rather were consistent with intent to retain property as private property of subdivider and they rebutted presumption of dedication arising from plat. Judgment affirmed.
152 1. His Excellency Sir Thomas Brisbane, then Governor-in-Chief of New South Wales and its Dependencies, on the 27th May 1823, made a grant to one William Hutchinson, his heirs and assigns, of 1,400 acres of land in the county of Cumberland and district of Sydney, " reserving to His Majesty, his heirs and successors, such timber as may be growing or to grow hereafter upon the said land which may be deemed fit for naval purposes; also such parts of the said land as are now or shall hereafter be required by the proper officer of His Majesty's Government for a highway or highways; and, further, any quantity of water, and any quantity of land, not exceeding ten acres, in any part of the said grant, as may be required for public purposes; provided always, that such water or land so required shall not interfere with, or in any manner injure or prevent the due working of the water mills erected or to be erected on the lands and watercourses hereby granted." 16. Assuming next (but for the purposes of this argument only) that the rule has, in England, been extended to the Crown, its suitability, when so applied, to the necessities of a young Colony raises a very different question. The object of the Government, in giving off public lands to settlers, is not so much to dispose of the land to pecuniary profit as to attract other colonists. It is simply impossible to foresee what land will be required for public uses before the immigrants arrive who are to constitute the public. Their prospective wants can only be provided for in two ways, either by reserving from settlement portions of land, which may prove to be useless for the purpose for which they are reserved, or by making grants of land in settlement, retaining the right to resume such parts as may be found necessary for the uses of an increased population. To adopt the first of these methods might tend to defeat the very objects which it-is the duty of a Colonial Governor to promote; and a rule which rests on considerations of public policy cannot be said to be reasonably applied when its application may probably lead to that result. Judgement of the Lords of the Judicial Committee of the Privy Council in the Appeal of William Cooper v. The Honourable Alexander Stuart (Colonial Secretary), from the Supreme Court of New South Wales; delivered 3rd April 1889
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With the Association of Municipalities Ontario (AMO) actually administering the Gas Tax Transfers153, it would seem that it is AMO that is making these demands and is implementing provincial policy, of which is not the obligation or mandate of AMO to do. The obligation/mandate of AMO is to represent the municipalities to the provincial government, defending the municipal principles supporting all municipalities and yet on page 16 of the 2011 Annual Report from the Associations of Municipalities Ontario (AMO), it states:
“Integrated Community Sustainability Plan Under the Gas Tax Fund, municipalities must complete an Integrated Community Sustainability Plan (ICSP). The ICSP must demonstrate a co- ordinated approach to sustainability in terms of social, cultural, environmental and economic objectives through co-operation with municipal partners and the community as a whole. Under the specific provisions of the Ontario Gas Tax Agreement, municipalities that have an Official Plan (OP) are deemed to have met this requirement. Municipalities completed reporting on this requirement of the Municipal Funding Agreement in 2010. The results of this were included in AMO’s 2010 Annual Expenditure Report. In 2011 a number of municipalities continued to develop and implement Integrated Community Sustainability Plans. AMO continues to promote ICSP development and implementation through ongoing support and the Sustainability Planning Toolkit for Municipalities in Ontario. In addition, federal support allowed AMO to launch Leading for Sustainability, a councillor training module designed to: Develop ideas and strategies to advance integrated planning; Develop an understanding of how decisions are made; Develop and practice tools for building momentum and consensus across groups; and Strengthen analytical skills through case studies and discussion. Reporting on this project will be released separately in September 2012.
Program administration in Ontario has responded to the local need for knowledge and has led to advancement in the sustainability objectives of Canada’s Gas Tax Fund. In this manner, AMO looks forward to continuing our positive and cooperative relationship with Infrastructure Canada as we move toward a permanent Gas Tax Fund.”154
153 “AMO administers the Fund for 443 municipalities in Ontario, and the allocation is passed directly to them on a per capita basis, without the need to fill out an application form. In December 2011 Canada’s Gas Tax Fund was enshrined in legislation as a permanent annual transfer for municipal infrastructure. R.F. (Russ) Powers AMO President, Canada’s Gas Tax Fund: Permanent funding for municipal infrastructure, Transfer of Federal Gas Tax Revenues Under the New Deal for Cities and Communities, Association of Municipalities Ontario, p. 3.
154 Canada’s Gas Tax Fund: Permanent funding for municipal infrastructure, Transfer of Federal Gas Tax Revenues Under the New Deal for Cities and Communities, Association of Municipalities Ontario, p. 16.
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It must be determined, by the municipalities, which entity expressed, that if Official Plans are not implemented, there will be no gas tax transfers, either AMO or the Provincial Government, and are all municipalities in agreement with AMO’s implementation? Mark Henderson, Reeve of Jocelyn Township expressed in an email:
“Ontario Municipal Partnership Fund 2012 Technical Guide “in my words "If my municipal Ontario residents do not receive their equitable share of municipal funds from the province I would plead my case of being short changed to a district court judge". 155
Perhaps this is an avenue that Municipalities should look into, in regards to the stipulations of the province and AMO.
There is also section 3.1156 of the Municipal Act which states that each municipality may enter into agreements with the Crown in right of Canada for matters within a municipal corporation's jurisdiction, of which, it would seem, the Gas Tax Transfer is under municipal corporate jurisdiction. Having determined that the withholding of gas tax transfers may not be within the purview of the province or AMO, the municipalities have a form of freedom to create agreements with the Federal government on their own behalf, as it would seem that the province and AMO may not be working in the best interests of the municipal corporate council/directors or staff. This being the case it would also seem that the municipalities have been misled, and are engaging in planning activities that are placing the municipalities in jeopardy. During the creation of the Planning Act, in 1946 it was reported in the Legislative Debates:
MR. G. ANDERSON (Fort William): … "I do not want to take up too much of the time at this late house but this Bill, if passed, would permit municipalities to enter into agreements with either government to carry on slum clearance and housing projects."157
Under section 4 of the Municipal Act, municipalities, either upper or lower tier, are merely corporations158 and under section 4.2 they do not have to subscribe to the
155 From: Mark Henderson [mailto:[email protected]], Sent: Tuesday, December 04, 2012 1:09 PM
156 Agreements with the federal government 3.1 The Province acknowledges that a municipality has the authority to enter into agreements with the Crown in right of Canada with respect to matters within the municipality’s jurisdiction. 2006, c. 32, Sched. A, s. 3.
157 Bill No.. 138, "An Act to enable Municipalities to Establish Community Planning and Housing, Authorities", DEBATES & PROCEEDINGS OF THE 2nd. SESSION OF THE 22nd LEGISLATURE OF THE PROVINCE OF ONTARIO. 1946. Vol 4. P. 1977
158 Corporation: A legal entity created under the authority of a statue, which permits a groups of people, as shareholders, to apply to the government for an independent organization to be created, which then pursues set objectives, and is empowered with legal rights usually only reserved for individuals, such as to sue and be sued, own property, hire employees or loan and borrow money. Duhaime On-Line Legal Dictionary. http://www.duhaime.org/LegalDictionary.aspx as of June 28, 2011
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“Corporations Act” or the “Corporations Information Act.”159 In the 1946 Act, section 1 (c) "city", "town", "village", "township" and "county" respectively mean city, town, village, township or county, the inhabitants of which are a body corporate within the meaning and for the purposes of this Act;
In conjunction with section 4, section 9 of the Municipal Act expresses that the municipalities only have the same rights, powers, privileges, and capacities of the natural person. It also expresses that they also only have the same authority as a natural person.160 This meaning, as expressed earlier, they can sue or be sued, enter into contracts, sell property belonging to the municipality, generally things that a person can do. And it must be understood thought that a “natural person” cannot commit trespass on to another's private property as expressed in the Criminal Code of Canada. This includes the trespass of creating by-laws that violate a private property owner’s right to use his/its property as he/it sees fit161.
Under section 5 “Powers exercised by council”, subsection 3 states that municipal corporations can only create by-laws in the same capacity and under the same power as a natural person could, meaning that a natural person can only create “by-laws” or have authority over what belongs162 to that person (section 9 Municipal Act). This in turn limits the ability of municipal corporations to create by-laws for any enforcement beyond its authority/boundaries. In conjunction with section 9, subsection 4 of section 5 express that this limitation is applicable to all municipal powers, whether bestowed by the Municipal Act or any other Act163.
159 Body corporate 4. (1) The inhabitants of every municipality are incorporated as a body corporate. 2001, c. 25, s. 4. Non-application (2) The Corporations Act and the Corporations Information Act do not apply to a municipality. 2006, c. 32, Sched. A, s. 4.
160 Powers of a natural person 9. A municipality has the capacity, rights, powers and privileges of a natural person for the purpose of exercising its authority under this or any other Act. 2006, c 32, Sched. A, s. 8.
161 “Notwithstanding the last mentioned fact or any of those considerations arising out of the ownership of the lands in question and the right of an owner to deal with the lands belonging to him or it, as to such owner may seem fit,…” Attorney-General for British Columbia and the Minister of Lands v. Brooks-Bidlake and Whitall, Ltd., 63 SCR 466.
162 BELONGINGS (Black’s Law Dictionary, 9th Edition, 2009, p. 175) – 1. Personal Property; EFFECTS – see personal property under property. 2. All property, including realty.
163 Powers exercised by council 5. (1) The powers of a municipality shall be exercised by its council. 2001, c. 25, s. 5 (1). Powers exercised by by-law (3) A municipal power, including a municipality’s capacity, rights, powers and privileges under section 9, shall be exercised by by-law unless the municipality is specifically authorized to do otherwise. 2001, c. 25, s. 5 (3); 2006, c. 32, Sched. A, s. 5. Scope (4) Subsections (1) to (3) apply to all municipal powers, whether conferred by this Act or otherwise. 2001, c. 25, s. 5 (4).
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Section 9164 of the Municipal Act is self-explanatory. A municipality only has the same rights, capacity, privileges or authority/power as a person.
Sections 10165 and 11grants the municipal corporation the authority to create by- laws for what belongs to the municipality as a corporation under the Municipal Act or any other Act. This includes the creations of by-laws for, under section 10: services, local boards and their operations that are accountable including their financial management, the public assets (4. Public assets166 of the municipality acquired for the purpose of exercising its authority under this or any other Act.), of the municipalities for economic, social and environmental development167 of the municipal assets, the protection of people on municipal properties including that the municipalities must be considerate of what consumer products they are selling/leasing/renting to the people, animals on municipal properties (including the authority to require muzzling of dogs168 on municipal property),
164 Powers of a natural person 9. A municipality has the capacity, rights, powers and privileges of a natural person for the purpose of exercising its authority under this or any other Act. 2006, c 32, Sched. A, s. 8.
165 Broad authority, single-tier municipalities 10. (1) A single-tier municipality may provide any service or thing that the municipality considers necessary or desirable for the public. 2006, c. 32, Sched. A, s. 8. By-laws (2) A single-tier municipality may pass by-laws respecting the following matters: 1. Governance structure of the municipality and its local boards. 2. Accountability and transparency of the municipality and its operations and of its local boards and their operations. 3. Financial management of the municipality and its local boards. 4. Public assets of the municipality acquired for the purpose of exercising its authority under this or any other Act. 5. Economic, social and environmental well-being of the municipality. 6. Health, safety and well-being of persons. 7. Services and things that the municipality is authorized to provide under subsection (1). 8. Protection of persons and property, including consumer protection. 9. Animals. 10. Structures, including fences and signs. 11. Business licensing. 2006, c. 32, Sched. A, s. 8. One power not affecting another (3) The power to pass a by-law respecting a matter set out in a paragraph of subsection (2) is not limited or restricted by the power to pass a by-law respecting a matter set out in another paragraph of subsection (2). 2006, c. 32, Sched. A, s. 8.
166 “municipal property asset” means an asset of the municipality that is land, equipment or other goods. O. Reg. 599/06, s. 14 (2).
167 ECONOMIC DEVELOPMENT SERVICES - means, in respect of a municipality, the promotion of the municipality by the municipality for any purpose by the collection and dissemination of information and the acquisition, development and disposal of sites by the municipality for industrial, commercial and institutional uses. – Municipal Act, Section 1
168 Definition (2) In this section, “animal” has the same meaning as in section 11.1. 2006, c. 32, Sched. A, s. 46 (2). 104. Repealed: 2006, c. 32, Sched. A, s. 47.
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fences and signs owned by the municipalities or involved with the Line Fence Act, and business licenses that are allowed under section 92.9169 of the BNA.
The definition of “municipal property asset” means - an asset of the municipality that is land, equipment or other goods. O. Reg. 599/06, s. 14 (2). So as expressed in Sections 10 and 11, subsection 2 (By-laws), section 4 for a municipality to exercise its corporate authority it must own the "asset" and it must pass a by-law to obtain the asset by either lease, purchase or enter in/on and expropriate with compensation.
Subsection 4170 of 10 restricts the municipal corporations from interfering with "services or things provided by a person other than the municipality or a municipal service board of the municipality" unless, as expressed in subsection 5171, the service is being provided under contract (by-law) to the municipality or one of its "local boards", as defined under section 10 (6)172.
Muzzling of dogs 105. (1) If a municipality requires the muzzling of a dog under any circumstances, the council of the municipality shall, upon the request of the owner of the dog, hold a hearing to determine whether or not to exempt the owner in whole or in part from the requirement. 2002, c. 17, Sched. A, s. 22 (1). Conditions (2) An exemption may be granted subject to such conditions as council considers appropriate. 2001, c. 25, s. 105 (2). (3) Repealed: 2006, c. 32, Sched. A, s. 48. Request does not stay requirement (4) A request of the owner of a dog for a hearing under this section does not act as a stay of the muzzling requirement. 2001, c. 25, s. 105 (4); 2002, c. 17, Sched. A, s. 22 (2).
169 92. 9. Shop, Saloon, Tavern, Auctioneer, and other Licences in order to the raising of a Revenue for Provincial, Local, or Municipal Purposes.
170 Services or things provided by others (4) The power of a municipality to pass a by-law respecting the matter set out in paragraph 7 of subsection (2) does not include the power to pass a by-law respecting services or things provided by a person other than the municipality or a municipal service board of the municipality. 2006, c. 32, Sched. A, s. 8.
171 Exception (5) Nothing in subsection (4) prevents a municipality from passing a by-law with respect to services or things provided by any person to the extent necessary, (a) to ensure the physical operation of a system of the municipality or of a municipal service board of the municipality is not impaired; or (b) to ensure the municipality, a municipal service board of the municipality or a system of the municipality or municipal service board meet any provincial standards or regulations that apply to them. 2006, c. 32, Sched. A, s. 8.
172 Definition 10. (6) In this section, “local board” means a local board other than, (a) a society as defined in subsection 3 (1) of the Child and Family Services Act, (b) a board of health as defined in subsection 1 (1) of the Health Protection and Promotion Act, (c) a committee of management established under the Long-Term Care Homes Act, 2007, (d) a police services board established under the Police Services Act, (e) a board as defined in section 1 of the Public Libraries Act, or (f) a corporation established in accordance with section 203. 2006, c. 32, Sched. A, s. 8; 2007, c. 8, s. 218 (1).
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Section 11173 is the Spheres of Jurisdiction. This entails the authority of both lower and upper tier corporations to create by-laws for what belongs to either, as expressed in the "table"174 of jurisdiction, grant the upper or lower tier the superior by- law creating authority. This would mean that if the jurisdiction of the by-law was granted exclusively to the upper tier the lower tier would have to accept that by-law, whereas the opposite if it is strictly granted to the lower tier. If there is no exclusive power to either than both have the authority. Again, it must be stressed that this is only for what belongs to the municipalities under the Municipal Act or any other Act.
Subsection 3175 of 11 allows the municipal corporations to create by-laws for: public highways, including traffic and parking on said highways, the public transportation systems/corporations of the municipalities/regions, public waste management systems, public utilities, cultural endeavours supplied by the municipality, access to recreational facilities owned by the municipality or local boards/corporations created by the municipalities, parks owned by the municipalities176,
173 SPHERES OF JURISDICTION Broad authority, lower-tier and upper-tier municipalities 11. (1) A lower-tier municipality and an upper-tier municipality may provide any service or thing that the municipality considers necessary or desirable for the public, subject to the rules set out in subsection (4). 2006, c. 32, Sched. A, s. 8. By-laws (2) A lower-tier municipality and an upper-tier municipality may pass by-laws, subject to the rules set out in subsection (4), respecting the following matters: 1. Governance structure of the municipality and its local boards. 2. Accountability and transparency of the municipality and its operations and of its local boards and their operations. 3. Financial management of the municipality and its local boards. 4. Public assets of the municipality acquired for the purpose of exercising its authority under this or any other Act. 5. Economic, social and environmental well-being of the municipality. 6. Health, safety and well-being of persons. 7. Services and things that the municipality is authorized to provide under subsection (1). 8. Protection of persons and property, including consumer protection. 2006, c. 32, Sched. A, s. 8.
174 See end of document.
175 By-laws re: matters within spheres of jurisdiction (3) A lower-tier municipality and an upper-tier municipality may pass by-laws, subject to the rules set out in subsection (4), respecting matters within the following spheres of jurisdiction: 1. Highways, including parking and traffic on highways. 2. Transportation systems, other than highways. 3. Waste management. 4. Public utilities. 5. Culture, parks, recreation and heritage. 6. Drainage and flood control, except storm sewers. 7. Structures, including fences and signs. 8. Parking, except on highways. 9. Animals. 10. Economic development services. 11. Business licensing. 2006, c. 32, Sched. A, s. 8.
176 Kennedy et al. v. The Corporation of the City of Toronto et al. Crown lands – Patent subject to condition – Trust – Crown's rights – Private Act – Provincial Legislature – Intra Vires – Ordnance lands -- "Sell, lease, or otherwise dispose of" – Interpretation. A Summary: Certain Ordnance land vested in the Crown was, in 1858, patented to the corporation of the city of Toronto, with the following clause in the patent: "Provided always, and this grant is subject to the following conditions, viz., that (the
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heritage sites owned or heritage sites of private property owners who have knowingly and willingly entered into agreements with the municipality177, municipal fences and signs, animals that use public facilities owned by the municipality, the public assets of the municipalities for economic, social and environmental development178 of the municipal assets,
land) ** shall be dedicated by the said corporation, and by them maintained for the purpose of a public park for the use, benefit, and recreation of the inhabitants of the said city of Toronto, for all time to come" **. The corporation of Toronto, in 1876, obtained from the Ontario Legislature an Act empowering them "to lease, sell, or otherwise dispose of" the said land, and one of their committees transferred it to another to use as a cattle market, receiving a yearly rent thereof which they applied to a park fund as provided by the Act giving the power to sell, &c. … Held, also, that the words "otherwise dispose of," when read with the rest of the Act covered the mode of using the property adopted, viz., as a cattle market, and the demurrer was allowed, with costs. Ontario Reports Vol. XII, 1887, p. 211
177 Purchase or lease by-laws 36. (1) The council of a municipality may pass by-laws providing for acquiring, by purchase, lease or otherwise, any property or part thereof designated under this Part, including any interest therein, for the use or purposes of this Part and for disposing of such property, or any interest therein, by sale, lease or otherwise, when no longer so required, upon such terms and conditions as the council considers necessary for the purposes of this Part. R.S.O. 1990, c. O.18, s. 36 (1). Expropriating by-law (2) Subject to the Expropriations Act, the council of every municipality may pass by-laws providing for the expropriation of any property designated under this Part and required for the purposes of this Part and may sell, lease or otherwise dispose of the property, when no longer so required, upon such terms and conditions as the council considers necessary for the purposes of this Part. R.S.O. 1990, c. O.18, s. 36 (2). Easements 37. (1) Despite subsection 36 (1), after consultation with its municipal heritage committee, if one is established, the council of a municipality may pass by-laws providing for the entering into of easements or covenants with owners of real property or interests in real property, for the conservation of property of cultural heritage value or interest. 2002, c. 18, Sched. F, s. 2 (19). Idem (2) Any easement or covenant entered into by a council of a municipality may be registered, against the real property affected, in the proper land registry office. R.S.O. 1990, c. O.18, s. 37 (2).
178 And regulation 599/06 under the Municipal Act. Economic development corporations 9. (1) If a municipality establishes a corporation for the sole purpose of providing one or more economic development services, the municipality may also designate the corporation as a “designated economic development corporation”. O. Reg. 599/06, s. 9 (1). (2) Despite section 21 of this Regulation, if a municipality designates a corporation under subsection (1), the corporation is a local board of the municipality for the purposes of section 326 of the Act. O. Reg. 599/06, s. 9 (2). (3) Economic development services provided by and for the purposes of a corporation designated by a municipality under subsection (1) are prescribed as special services for the purposes of clause 326 (1) (a)178 of the Act. O. Reg. 599/06, s. 9 (3). (4) In this section, “economic development services” means, (a) the promotion of the municipality for any purpose, including by the collection and dissemination of information and the development of economic development strategic plans, (b) the acquisition, development and disposal of sites in the municipality for residential, industrial, commercial and institutional uses, (c) provision of public transportation systems, (d) provision of residential housing, (e) provision of general parking facilities, (f) providing a counselling service to or encouraging the establishment and initial growth of small businesses operating or proposing to operate in the municipality, (g) undertaking community improvement consistent with a community improvement plan approved by the municipality under subsection 28 (4) of the Planning Act,
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(h) improvement, beautification and maintenance of municipally-owned land, buildings and structures in an area designated by the municipality beyond the standard provided at the expense of the municipality generally, and promotion of any area of the municipality as a business or shopping area, (i) provision of facilities for amusement or for conventions and visitors’ bureaus, (j) provision of culture and heritage systems. O. Reg. 599/06, s. 9 (4). Status of corporation 21. (1) A corporation is not a local board for the purposes of any Act. O. Reg. 599/06, s. 21 (1). (2) Despite subsection (1), a corporation shall be deemed to be a local board for purposes of subsection 270 (2) of the Act, and for the purposes of the Environmental Assessment Act, the Municipal Conflict of Interest Act, the Emergency Management and Civil Protection Act, and subsection 56.2 (3) of the Capital Investment Plan Act, 1993. O. Reg. 599/06, s. 21 (2). (3) Despite subsection (1), if a corporation is wholly-owned, it shall be deemed to be a local board for the purposes of the Development Charges Act, 1997. O. Reg. 599/06, s. 21 (3). By-laws re special services 326. (1) A municipality may by by-law, (a) identify a special service; (b) determine which of the costs, including capital costs, debenture charges, charges for depreciation or a reserve fund, of the municipality are related to that special service; (c) designate the area of the municipality in which the residents and property owners receive or will receive an additional benefit from the special service that is not received or will not be received in other areas of the municipality; (d) determine the portion and set out the method of determining the portion of the costs determined in clause (b) which represent the additional costs to the municipality of providing the additional benefit in the area designated in clause (c); (e) determine whether all or a specified portion of the additional costs determined in clause (d) shall be raised under subsection (4). 2001, c. 25, s. 326 (1); 2006, c. 32, Sched. A, s. 136 (1). Definitions (2) In this section, “benefit” means a direct or indirect benefit that is currently available or will be available in the future; (“avantage”) “special service” means a service or activity of a municipality or a local board of the municipality that is, (a) not being provided or undertaken generally throughout the municipality, or (b) being provided or undertaken at different levels or in a different manner in different parts of the municipality. (“service spécial”) 2001, c. 25, s. 326 (2). Limitation (3) An area designated by a municipality for a year under clause (1) (c) cannot include an area in which the residents and property owners do not currently receive an additional benefit but will receive it in the future unless the expenditures necessary to make the additional benefit available appear in the budget of the municipality for the year adopted under section 289 or 290 or the municipality has established a reserve fund to finance the expenditures over a period of years. 2001, c. 25, s. 326 (3). Levies (4) For each year a by-law of a municipality under this section remains in force, the municipality shall, except as otherwise authorized by regulation, (a) in the case of a local municipality, levy a special local municipality levy under section 312 on the rateable property in the area designated in clause (1) (c) to raise the costs determined in clause (1) (e); (b) in the case of an upper-tier municipality, direct each lower-tier municipality which includes any part of the area designated in clause (1) (c) to levy a special upper-tier levy under section 311 on the rateable property in that part of the municipality to raise its share of the costs determined in clause (1) (e). 2001, c. 25, s. 326 (4). Regulations (5) The Minister may make regulations providing for any matters which, in the opinion of the Minister, are necessary or desirable for the purposes of this section, including, (a) prescribing services that cannot be identified as a special service under clause (1) (a); (b) establishing conditions and limits on the exercise of the powers of a municipality under this section, including making the exercise of the powers subject to the approval of any person or body; (c) prescribing the amount of the costs or the classes of costs for the purpose of clause (1) (b); (d) prescribing the area or rules for determining the area for the purpose of clause (1) (c); (e) prescribing the amount of the additional costs or the rules for determining the additional costs for the purpose of clause (1) (d); (f) providing for a process of appealing a by-law under this section and the powers the person or body hearing the appeal may exercise; (g) providing that an appeal under clause (f) may apply to all or any aspect of the by-law; (h) providing for rules or authorizing the person or body hearing an appeal under clause (f) to determine when by- laws subject to appeal come into force, including a retroactive date not earlier than the day on which the by-law was passed; (i) for the purpose of subsection (4), exempting or delegating to a municipality the power to exempt specified rateable property from all or part of a special local municipality levy or a special upper-tier levy for a specified special service. 2001, c. 25, s. 326 (5); 2006, c. 32, Sched. A, s. 136 (2).
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The definition of “economic development services” under section 1 of the Municipal Act, means, "in respect of a municipality, the promotion of the municipality by the municipality for any purpose by the collection and dissemination of information and the acquisition, development and disposal of sites by the municipality for industrial, commercial and institutional uses;" which coincides with section 28 of the Planning Act, under "community improvement"179.
municipal drains under the Drainage Act, and business licenses that are allowed under section 92.9180 of the BNA.
Section 11 (4)181 are the rules of jurisdiction between upper and lower tier municipal corporations. 11. 4. 4, 5, and 6182, restricts the municipal corporation with the division of powers between upper and lower corporations under this or any other Act. 11.4.7183 restricts municipal corporation from placing their corporate signs within 400 meters of any highway. This includes advertising signs owned by the lower tiered
179 “community improvement” means the planning or replanning, design or redesign, resubdivision, clearance, development or redevelopment, construction, reconstruction and rehabilitation, improvement of energy efficiency, or any of them, of a community improvement project area, and the provision of such residential, commercial, industrial, public, recreational, institutional, religious, charitable or other uses, buildings, structures, works, improvements or facilities, or spaces therefor, as may be appropriate or necessary;
180 92. 9. Shop, Saloon, Tavern, Auctioneer, and other Licences in order to the raising of a Revenue for Provincial, Local, or Municipal Purposes. " I have tried to find in the Imperial Act a power given to the Local Legislatures, by way of exception, to impose indirect taxes by licences duties on any industry (commercial or non-commercial), occupation, trade, profession, other than on “shop, saloon, tavern, auctioneers,” and others of the same kind, ejusdem generis, but I have not found such a power. It would not be necessary for me to add anything, for as I have already remarked, I am of opinion, that as the power has not been given to Local Legislatures, it comes within the legislative authority of the Federal Parliament,…" Constitution of Canada. The B.N.A. Act, 1867; Its Interpretation, etc., p. 207
181 Rules (4) The following are the rules referred to in subsections (1), (2) and (3): 1. If a sphere or part of a sphere of jurisdiction is not assigned to an upper-tier municipality by the Table to this section, the upper-tier municipality does not have the power to pass by-laws under that sphere or part and does not have the power to pass by-laws under subsection (1) or (2) that, but for this paragraph, could also be passed under that sphere or part. 2. If a sphere or part of a sphere of jurisdiction is assigned to an upper-tier municipality exclusively by the Table to this section, its lower-tier municipalities do not have the power to pass by-laws under that sphere or part and do not have the power to pass by-laws under subsection (1) or (2) that, but for this paragraph, could also be passed under that sphere or part. 3. If a sphere or part of a sphere of jurisdiction is assigned to an upper-tier municipality non-exclusively by the Table to this section, both the upper-tier municipality and its lower-tier municipalities have the power to pass by-laws under that sphere or part.
182 4. If a lower-tier municipality has the power under a specific provision of this Act, other than this section, or any other Act to pass a by-law, its upper-tier municipality does not have the power to pass the by-law under this section. 5. If an upper-tier municipality has the power under a specific provision of this Act, other than this section, or any other Act to pass a by-law, a lower-tier municipality of the upper-tier municipality does not have the power to pass the by-law under this section. 6. Paragraphs 4 and 5 apply to limit the powers of a municipality despite the inclusion of the words “without limiting sections 9, 10 and 11” or any similar form of words in the specific provision.
183 7. The power of a municipality with respect to the following matters is not affected by paragraph 4 or 5, as the case may be: i. prohibiting or regulating the placement or erection of any sign, notice or advertising device within 400 metres of any limit of an upper-tier highway, ii. any other matter prescribed by the Minister. 2006, c. 32, Sched. A, s. 8.
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municipal corporation and its ability to place a sign within the 400 meter distance of an upper tier highway.
Under section 11 subsection 6 and 7184 the municipal corporations are restricted from creating by-laws that interfere with any other service or goods provider, including whether those services are provided by either upper or lower tier municipal corporations. And under subsection 8185 both upper and lower tier corporations are limited to creating by-laws for services that they or a corporation created by them, supplies and/or for property that is owned and managed/operated by either corporation186. The municipal corporations do not have authority to create by-laws for "private" entities or private property.
Under section 10187 of the Municipal Act a board and/or single tier municipal corporation may provide services that the municipal corporation considers necessary to the local community. A local board is defined under subsection 6 as: “Definition (6) In this section, “local board” means a local board other than, (a) a society as defined in subsection 3 (1) of the Child and Family Services Act188,
184 Services or things provided by others (6) The power of a municipality to pass a by-law respecting the matter set out in paragraph 7 of subsection (2) does not include the power to pass a by-law respecting services or things provided by a person other than the municipality or a municipal service board of the municipality. 2006, c. 32, Sched. A, s. 8. Services or things provided by other tier (7) The power of a municipality to pass a by-law under subsection (3)184 under each sphere of jurisdiction does not, except as otherwise provided, include the power to pass a by-law respecting services or things provided by its upper- tier or lower-tier municipality, as the case may be, of the type authorized by that sphere. 2006, c. 32, Sched. A, s. 8.
185 11. Services or things provided by others (8) The power of a municipality to pass a by-law under subsection (3) 185 under the following spheres of jurisdiction does not, except as otherwise provided, include the power to pass a by-law respecting services or things provided by any person, other than the municipality or a municipal service board of the municipality, of the type authorized by that sphere: 1. Public utilities. 2. Waste management. 3. Highways, including parking and traffic on highways. 4. Transportation systems, other than highways. 5. Culture, parks, recreation and heritage. 6. Parking, except on highways. 2006, c. 32, Sched. A, s. 8.
186 Exception (9) Nothing in subsection (6), (7) or (8) prevents a municipality passing a by-law with respect to services or things provided by any person to the extent necessary, (a) to ensure the physical operation of a system of the municipality or of a municipal service board of the municipality is not impaired; or (b) to ensure the municipality, a municipal service board of the municipality or a system of the municipality or municipal service board meet any provincial standards or regulations that apply to them. 2006, c. 32, Sched. A, s. 8. Definition (10) In this section, “local board” means a local board as defined in section 10186. 2006, c. 32, Sched. A, s. 8.
187 Broad authority, single-tier municipalities 10. (1) A single-tier municipality may provide any service or thing that the municipality considers necessary or desirable for the public. 2006, c. 32, Sched. A, s. 8.
188 Child and Family Services Act 3. (1) Every approved agency and every approved corporation shall appoint a person to act as the chief executive officer of the approved agency or approved corporation. (3) An approved
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(b) a board of health as defined in subsection 1 (1) of the Health Protection and Promotion Act189, (c) a committee of management established under the Long-Term Care Homes Act, 2007190, (d) a police services board established under the Police Services Act191, (e) a board as defined in section 1 of the Public Libraries Act192, or (f) a corporation established in accordance with section 203193. 2006, c. 32,” agency or approved corporation that operates more than one approved service, children’s institution or children’s mental health centre, as the case may be, may appoint more than one person as the chief executive officer and may designate the approved service, children’s institution or children’s mental health centre for which each chief executive officer shall be responsible. (4) Subsections (1) and (3) do not apply to a society in so far as it is providing services under section 15 of the Act. : Note: subsection 4 is the only mention of a society under Section 3.
189 Health Protection and Promotion Act “board of health” means a board of health established or continued under this Act and includes, (a) the regional municipalities of Durham, Halton, Niagara, Peel, Waterloo and York and the County of Oxford, (b) a single-tier municipality that, under the Act establishing or continuing it, has the powers, rights and duties of a local board of health or a board of health established under this Act, and (c) an agency, board or organization prescribed by regulation; (“conseil de santé”).
190 Long-Term Care Homes Act, 2007, Committee of management, appointment 132. (1) The council of a municipality establishing and maintaining a municipal home or the councils of the municipalities establishing and maintaining a joint home shall appoint from among the members of the council or councils, as the case may be, a committee of management for the municipal home or joint home. 2007, c. 8, s. 132 (1).
191 Police Services Act, PART III, MUNICIPAL POLICE SERVICES BOARDS, Police services boards 27. (1) There shall be a police services board or, as provided in subsection 5 (3), one or more police services boards, for every municipality that maintains a police force. 2002, c. 18, Sched. N, s. 61 (1). Boards of commissioners of police continued as police services boards (2) Every board of commissioners of police constituted or continued under the Police Act, being chapter 381 of the Revised Statutes of Ontario, 1980, or any other Act and in existence on the 31st day of December, 1990, is continued as a police services board. R.S.O. 1990, c. P.15, s. 27 (2).Name (3) A board shall be known as (insert name of municipality) Police Services Board and may also be known as Commission des services policiers de (insert name of municipality). R.S.O. 1990, c. P.15, s. 27 (3).
192 Public Libraries Act, Definitions, 1. In this Act, “board” in Part I means a public library board, a union board, a county library board or a county library co-operative board; (“conseil”)
193 Power to establish corporations 203. (1) Without limiting sections 9, 10 and 11, those sections authorize a municipality to do the following things in accordance with such conditions and restrictions as may be prescribed: 1. To establish corporations. 2. To nominate or authorize a person to act as an incorporator, director, officer or member of a corporation. 3. To exercise any power as a member of a corporation. 4. To acquire an interest in or to guarantee such securities issued by a corporation as may be prescribed. 5. To exercise any power as the holder of such securities issued by a corporation as may be prescribed. 2006, c. 32, Sched. A, s. 88. Duties of corporations, etc. (2) A corporation established by a municipality and a secondary corporation and the directors and officers of the corporation shall comply with such requirements as may be prescribed. 2009, c. 33, Sched. 21, s. 6 (7). Exceptions (3) This section does not apply with respect to a corporation established under section 142 of the Electricity Act, 1998, a corporation established under section 13 of the Housing Development Act, a local housing corporation established under Part III of the Social Housing Reform Act, 2000 or any other corporation that a municipality is expressly authorized under any other Act to establish or control. 2006, c. 32, Sched. A, s. 88. Definition (3.1) For the purposes of this section, “secondary corporation” means a corporation established by a corporation that was established under subsection (1) and a corporation deemed under the regulations to be a secondary corporation. 2009, c. 33, Sched. 21, s. 6 (8). Regulations (3.2) The Lieutenant Governor in Council may make regulations providing that specified corporations are deemed to be secondary corporations. 2009, c. 33, Sched. 21, s. 6 (8). Regulations re corporations (4) The Lieutenant Governor in Council may make regulations governing the powers of a municipality under this section and governing corporations established under subsection (1) and secondary corporations, including regulations, (a) prescribing the purposes for which a municipality may exercise its powers referred to in this section and imposing conditions and restrictions on the use of those powers; (b) prescribing the
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In regards to the “Legislated Authority” for the Municipal corporations to make by- laws…Section 10 – 12 of the Municipal Act, this is granted through Section 92 subsection 8 of the BNA, where the province has the authority to granted permission to Municipal Institutions/corporations the right to make by-laws. It would seem, the province's authority to create Letters Patent to incorporate a new municipal corporate entity and the authority to create contracts with the said entities (92 (16) BNA), is the limited authority the Province has in regards to the Municipal corporations. That being said, it would seem the province has left the Municipal corporations to create by-laws, knowing that these types of by-laws cannot be up-held in the courts194, leaving the corporations (staff, Council) open to “Torts” (Law Suits). If the Province was legally able to create legislation, in regards to these issues, it would have. We direct you to Section 14 of the Municipal Act.
Conflict between by-law and statutes, etc. 14. (1) A by-law is without effect to the extent of any conflict with, (a) a provincial or federal Act or a regulation made under such an Act; or (b) an instrument of a legislative nature, including an order, licence or approval, made or issued under a provincial or federal Act or regulation. 2001, c. 25, s. 14. Same (2) Without restricting the generality of subsection (1), there is a conflict between a by-law of a municipality and an Act, regulation or instrument described in that subsection if the by-law frustrates the purpose of the Act, regulation or instrument. 2006, c. 32, Sched. A, s. 10.
Section 15 restricts any municipal corporate powers/authority to those of a “natural person”.
RESTRICTIONS AFFECTING MUNICIPAL POWERS Specific powers, by-laws under general powers 15. (1) If a municipality has power to pass a by-law under section 9, 10 or 11 and also under a specific provision of this or any other Act, the power conferred by section 9, 10 or 11 is subject to any procedural requirements, including conditions, approvals and appeals, that apply to the power and any limits on the
purposes for which a corporation may carry on business or engage in activities; (c) prescribing securities for the purposes of paragraphs 4 and 5 of subsection (1); (d) imposing conditions and requirements that apply to a corporation and its directors and officers; (e) providing that specified corporations are deemed to be or are deemed not to be local boards for the purposes of any provision of this Act or for the purposes of the definition of “municipality” in such other Acts as may be specified; (f) providing that specified corporations are deemed for the purposes of any Act or specified provisions of an Act not to be operating a public utility in such circumstances as may be prescribed; (g) exempting a municipality from the application of section 106 with respect to specified corporations; (h) providing for transitional matters relating to a municipality’s exercise of its powers under section 106 or relating to a specified corporation’s exercise of its powers. 2006, c. 32, Sched. A, s. 88; 2009, c. 33, Sched. 21, s. 6 (9). Conflict (5) If there is a conflict between a regulation made under this section and a provision of this Act, other than this section, or of any other Act or regulation, the regulation made under this section prevails. 2006, c. 32, Sched. A, s. 88.
194 Georgian Bluffs (Township) v. Moyer, 2012 ONCA 700, DOCKET: C53734
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power contained in the specific provision. 2001, c. 25, s. 15 (1); 2006, c. 32, Sched. A, s. 11 (1). Interpretation (4) Subsection (1) applies to limit the powers of a municipality despite the inclusion of the words “without limiting sections 9, 10 and 11” or any similar form of words in the specific provision. 2006, c. 32, Sched. A, s. 11 (4).
The forced demands by the province and/or AMO on our municipal corporations could be deemed beyond their authority as the province and/or AMO, like any “person” or even the Crown does not have any right, title or interest in private property ergo, it cannot demand that private property be designated/zoned or a private property owner to do or not do something on/with the private property owner’s property. This is evident in Regulation 322/12195 under the Municipal Act, which is supported by Part VI, section 28 of the Planning Act.
“Scope of local improvement, 2 (4) Nothing in this Regulation authorizes a municipality to enter and undertake a work as a local improvement on private property without the permission of the owner or other person having the authority to grant such permission.” and “PART III, LOCAL IMPROVEMENTS ON PRIVATE PROPERTY BY AGREEMENT, Local improvements, private property, 36.1 In accordance with this Part, a municipality may raise the cost of undertaking works as local improvements on private property by imposing special charges on the lots of consenting property owners upon which all or part of the works are or will be located.”
In this document there is a definition of “private”. The definition contains the explanation that private is “with respect to a work or property, a work or property that is not owned by the municipality or a local board of the municipality”, as there has never been any indication that the Municipal Act, the Places to Grow Act, the Planning Act, the Ontario Planning and Development Act, the Provincial Policy Statement or any act that pertains to government agencies having a right, title or interest in, on or to private property, it stands to reason that any act and/or regulation that is created to restrict and to regulate is for public/Crown properties and public/Crown entities/employees. This includes any corporation that is created by the province and/or municipal board to fulfill a “public service”, as in Social Housing, community planning boards, local appeal bodies, heritage committees, etc.
When Municipal corporations implement by-laws that are in conflict or frustrate Acts of Parliament, superior legislation, Crown contracts or Crown Grants/Letters Patent, the Council and staff can be found liable to tort action. This includes all
195 ONTARIO REGULATION 322/12, made under the MUNICIPAL ACT, 2001, Made: October 23, 2012, Filed: October 25, 2012, Published on e-Laws: October 26, 2012, Printed in The Ontario Gazette: November 10, 2012 Amending O. Reg. 586/06 (LOCAL IMPROVEMENT CHARGES — PRIORITY LIEN STATUS) Note: Ontario Regulation 586/06 has previously been amended. For the legislative history of the Regulation, see the Table of Consolidated Regulations – Detailed Legislative History at www.e-Laws.gov.on.ca. Made by: Kathleen O’Day Wynne Minister of Municipal Affairs and Housing (for the complete regulation see end of document). Date made: October 23, 2012.
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members of staff, particularly, the by-law inspector, Clerks, CAOs, Planners, and Council, as it is function of these entities to know and understand the implication of all Acts and any conflicts/frustrations that may arise. Please note section 448.2 of the Municipal Act: PART XV MUNICIPAL LIABILITY 448.2 Liability for torts (2) Subsection (1) does not relieve a municipality of liability to which it would otherwise be subject in respect of a tort committed by a member of council or an officer, employee or agent of the municipality or a person acting under the instructions of the officer, employee or agent. 2001, c. 25, s. 448 (2).196
As expressed in Georgian Bluffs (Township) v. Moyer, 2012 ONCA 700, DOCKET: C53734, at pages 6 and 7.
"This action should never have occurred. It was caused by an incompetent employee of the Township who simply did not know what his job was or the limitations to his legal powers, …" [20] The action that “should have never occurred” was an action brought by the Township. The appellant successfully defended himself against the most significant element of the claim advanced by the Township – namely, an order that he remove all objectionable items from his 100-acre property. The appellant also succeeded in having the clean-up costs struck from his property tax bill, in establishing that the Township had trespassed upon his property, and, as we have found, in establishing that the Township had converted chattels he owned. In other words, the appellant was successful on every substantive issue raised in the litigation…"
If the municipal corporation could not implement a property standard by-law197 on private property, then why would a municipality consider that it was within the corporate jurisdiction to designate or zone private property? Moving forward with official plan by- laws place our municipalities in serious jeopardy and all elected officials should be concerned that what is implemented now will create even more serious situations in future. This is not to say that municipal council/directors and staff cannot create an official plan, it is only to say that they can only create said plan for what belongs to the municipal corporation, and that is not someone else's private property.
Now with recent events, we have received a letter from a private property owner that was sent to him by the Chief Building Inspector in his area. In this letter, at the advice of the municipality’s legal department, is the statement:
196 Municipal Act http://www.e-laws.gov.on.ca/html/statutes/english/elaws_statutes_01m25_e.htm#BK541 , as of June 30, 2011
197 "Both legal opinions explain that the Dynamic Beach By-law is not enforceable on private properties." Town of South Bruce Peninsula, Press Release Oct. 17, 2012.
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“You have recognized this authority by submitting and pursuing an application to rezone the subject lands.”198
Had this person not applied for a “rezoning” the municipal corporation did not have authority to demand application or to implement any zoning. The corporation made the demand for application anyways on the threat that the person would be charged for not applying. This is doing indirectly what the municipality cannot do directly, which is illegal.
“Angers, pro Regina and The Queen Insurance Co., Held by Superior Court, Montreal, Torrance, J., affirmed by Queen’s Bench, Montreal, and confirmed by the Jud. Com. Of the Privy Council (21 L. C. J. 77; 22 L. C. J. 307; 16 C. L. J. 198; 3 L.R. App. Cases 1090).”199
“It is an evasion of the Act from which the Local Legislature derives its power. The Local Legislature cannot, no more than private individuals, act as it were in fraud of the law, that is, do by indirect means what it cannot effect directly…”200
Through the application process they are unlawfully expropriating a person’s private property rights and because the municipality is not saying “no, you do not need to apply” and are telling property owners that they must apply for our permission under the Planning Act, the Building Code, etc., they are actually violating the legislation, so every application and every permit has been issued under “false pretense” which is in the Criminal Code of Canada.
The “zoning” under the Planning Act is not applicable to private property, neither is the Building Code. There is nothing in the Municipal Act or any other Act that grants municipal corporations, or any entity, the authority to demand application on private property. The zoning, planning, etc., is all for the various municipal properties, boards, social housing, etc., but not private property. Unfortunately, the majority of municipal council/directors and staff have been led to believe, through misinformation, that they do have this authority.
Because of the above statement, to the private property owner, it would seem, the municipality has now placed the council/directors and staff in the position of committing a criminal act as expressed in the Criminal Code of Canada. In July, 2013201 there has been an application to the courts of "torts of trespass", Criminal charges, etc., against all of a council/directors and agents/staff, involved in the tort situation, and it is
198 Town of Lincoln letter to Theodore John Lizak, dated August 8, 2013.
199 Constitution of Canada. The B.N.A. Act, 1867; Its Interpretation, etc., p. 207. 200 “It is an evasion of the Act from which the Local Legislature derives its power. The Local Legislature cannot, no more than private individuals, act as it were in fraud of the law, that is, do by indirect means what it cannot effect directly Constitution of Canada. The B.N.A. Act, 1867; Its Interpretation, etc., p. 209
201 Court File No. 49890 - VERNON REGISTRY
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only a matter of time before someone else will use some of the CCC against another council/directors or staff. There is also “tort action” under section 448.2 of the Municipal Act because, as stated in the Municipal Councillor’s Guide, 2010, you are responsible to know the legislation, past by-laws and all court rulings, and yet that document also misleads and had quite the disclaimer leaving council, again, wide open.
The province, through the municipalities is trying to do indirectly what it cannot do directly. It is a standard of law that “What cannot be legally done directly cannot be done indirectly. This rule is basic and, to a reasonable mind, does not need explanation. Indeed, if acts that cannot be legally done directly can be done indirectly, then all laws would be illusory.”202
"Mr. Givens, MPP: …I feel very strongly about this. I'm opposed to the whole concept. I believe that if a government wants something for public purposes, whether it is a municipal government or a provincial government, it should have to prove that it requires it and it has to go in and buy it and not confiscate it and not steal it. I think this is wrong. I think it is wrong to zone land for agriculture when we know very well that it isn't agricultural."203
202 [G.R. No. 166471, March 22, 2011], TAWANG MULTI-PURPOSE COOPERATIVE, PETITIONER, VS. LA TRINIDAD WATER DISTRICT, RESPONDENT.
203 ONTARIO LEGISLATURE - MARCH 12, 1974, Vol 1, p. 187-188
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THE PLANNING ACT – THE INTENT OF THE LEGISLATORS
World War II was over and hundreds of thousands of men and women were coming back to Canada and during the war the Dominion of Canada had expropriated land for the manufacture of airplanes, munitions, etc. To ensure that these plants had sufficient workers the Dominion government also created living communities. The problem with these communities was that they were erected on Dominion Crown Land, meaning that any abutting municipalities would not receive any revenue by means of property taxes for the support of the services they were expected to supply.
The services referred to were schools, hospitals, etc. Point in fact, take the Township of Pickering (Ajax) for example.
"MR. T. KELSO CREIGHTON (Ontario) : … During the war years we expected a certain amount of this type of dislocation as part of our war effort. What this amounted to, in this particular case, is, …, this : In Pickering Township, in 1942, the Crown in right of the Dominion established a very important munition plant. The first dislocation was to take a very large part of that township out of the ordinary assessment roll. It was a very large plant which was erected, and they took 3,000 acres, and that amounted to over 5 per cent, of the total assessable area of the Township of Pickering. That, in itself, is a very serious dislocation. The second dislocation—a more serious one still—was they imported into the township a great number of people and to meet the needs of that population erected 600 houses, which brought a population of between 2,000 and 3,000 people into a rural township having a population of its own of only about 7,200 people, and it added one third to the population. This means this rural township, and the county of which it forms a part, had to take the role of foster parent to this new community, a community which had no economic relation whatever to the township in which it was situated. It was in no sense a part of the township. That raised a number of problems, which are specifically mentioned in the Act. For example, school attendance, education of the children, and the policing of the community. Those problems were adjusted on a somewhat temporary or almost makeshift basis, but they have been adjusted, but certain others have not been. There is, for instance, the question of the administration of justice and in this particular case the county was obliged to absorb our $10,000 of municipal accounts for the administration of justice arising out of an unfortunate coincidence of events. During a period of some 4 years, the county and township joined in an expense of $2,600 and more in connection with hospitalization. There was an item, somewhat smaller, of about $2,400 for tubercular after-care, that is, aftercare of patients treated in sanataria. There are other items. … To keep the municipality under compulsion of furnishing these services is to compel a rural municipality, in effect, to subsidize a housing township. The housing area has no relationship to its own housing problems, because it is just a rural area. It is a method of permitting agencies of the Crown which own these houses, or administer them for the Crown, in the right of the Dominion, to apply all the revenue received from these houses in reduction of its capital investment, and do this at the expense of
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the small municipality which has to bear a substantial part of its cost. This, of course, is in no sense to be blamed upon the inhabitants of the communities themselves, because they, like the township, are victims. They have been deprived of the ordinary privileges of local government. They have no local council; they cannot vote for anybody to administer their affairs. They are entitled to better treatment. They were brought in for the purpose of serving in this important munitions plant, and they did a very good war job, and many of them have not been able to locate elsewhere. The problem still remains of restoring these people to the social and economic life of a community with full enjoyment of rights and privileges."204
There had to be a means of supplying affordable housing and the supplying of jobs for the veterans coming home. There were references made, during post war debates, in the legislature, of how widows of veterans were being thrown out of their homes because they couldn't afford their mortgages or rents. There were slums in urban centers which were in need of rebuilding and all of these events had taken place, previously, after the First World War.
"Hon. Dana H. Porter (Minister of Planning and Development): Now, at the very outset, the very day on which I was appointed as Minister of this Department, a conference was held in Toronto of representatives of municipalities throughout the province, and at that conference about four hundred representatives attended. It was referred to as a "Planning Conference." The purpose of it was to consider certain brood questions of what we commonly call "postwar planning", as it affects the municipalities throughout the province… Despite what acme of the hon. members have said, I have been very careful not to indicate that this Government was prepared with any programme of financial assistance to municipalities in carrying out their local works in the years to come. That is something which may or may not be discussed and decided upon during the next few months, when we meet the Dominion at Ottawa. But there are certain very necessary steps that we decided should be taken with reference to planning by municipalities for their public works projects, their various programmes of expansion and activities over the next few years."205
"Mr. Frost:… One of the essentials of postwar planning is to bring about freedom of investment. The attraction of capital to our Province, and the free employment of the same, would create prosperity and work, inevitably leading, among other things, to larger sources of revenue."206
204 CLERK OF THE HOUSE: 82nd Order; second reading of Bill No. 108, An Act respecting the Provision of Services by the Province and Municipalities to Persons Occupying Dominion Crown Lands. RESPECTING THE PROVISION OF SERVICES BY THE PROVINCE AND MUNICIPALITIES TO PERSONS OCCUPYING DOMINION CROWN LANDS. Ontario Legislative Assembly - Volume 1, March 3, 1948, Page 469 – 471
205 Legislative Debates - 1945 Volume 1, Page 306-307
206 Legislative Debates - 1945 Volume 2, Page 956
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"Hon. Dana Porter (Minister of Planning and Development): Mr. Speaker, …In the first place, I may say that generally this Bill covers three aspects of planning and planning procedure, as it applies particularly to urban area. In the first place, it provides for the setting up of planning boards by municipalities to undertake certain planning functions, and it gives power to the Minister of this Department to designate planning areas in which they may proceed. It also outlines the steps which should be taken as a result of the investigation and recommendations of the Planning Boards, the steps that should be taken by the municipal councils, and eventually to adopt an "official plan" as it is defined in this Act, a plan which is of an over-all nature, covering the whole planning area; in some cases it might be within the limitation of one municipality; in some cases it might be beyond the limitations of one municipality. I do not think there is anything in particular that I need to refer to at this state as to the details of that procedure which I have outlined. It is to provide guidance for the operation of the Planning Boards of this kind, and I may say that this Bill has been prepared as the result of a very great deal of consultation, and a great many conferences with the mayors and other officials of municipalities, and with other persons who have been closely associated with this sort of procedure, and are alive to sort of needs we are trying to meet. Then, in the second place, this Bill provides for the effect of the official plan, and once an official plan is adopted, it might be a plan that covers a very wide field in some cases, and it might be a plan that covers a much more restricted field in others. That is a matter which has to be decided by the municipal council involved, but once the plan is adopted, then it will have certain very definite effects. In the first place, I may say that the Bill provides it be approved either by the Minister of Planning and Development, or by the Municipal Board, if any of the parties who may be interested or who may be affected desire to have the matter placed before the Municipal Board. Once the plan has been adopted, and has been approved in accordance with the provisions of this Act, then the plan will have the same affect as if zoning by- law had been passed under the municipal act, and the plan cannot be altered or changed or amended in any way, once a similar procedure is carried out, unless the matter comes again for adoption by the Municipal Council, and finally for approval by the Minister or the Municipal Board, as the case may be. Then, in the third place, one of the very difficulties we have arising, - and I might say particularly, this aspect of the Bill is concerned with matters which have arisen from day to day during the last number of month in my Department, where new land is being developed, and new subdivisions are being opened up. It is all very well to attempt to assist in planning one way and another in a broad way, but when we get down to the fundamentals of it, we find that the root of the whole business comes right down to the proper laying out and proper control of new subdivision development. A simple procedure has been followed in the past, and we have it on the statute books today, in the Planning and Development Act, many features of which
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are being incorporated in this Act, and that Act will eventually be repealed, and this Act carries somewhat further over what is laid down there. Due to experiences in the last few months, and long years of experience under the old procedure and existing statutes, we have worked out what we think is a much more effective procedure for the handling of new subdivision development, and then approval of it in a way that will be much more effective under the present system, and in a way which we think will be much quicker, and more expeditious than the system which has … up, up to the present time. I think that broadly outlines the three main principles involved in this Act."207
"Mr. W. J. Grummet (Cochrane South): I would like to ask the hon Minister a question referring specifically to one section. Perhaps I might better take it up in committee, but perhaps the hon Minister would clarify it now; that is Section 2, Sub-Section 2, "Where the Planning area covers more than one municipality the Minister shall designate the municipality that shall formulate the official plan and the scope and general purpose thereof." Now, I was wondering if there is not a little danger in allowing one municipality to get control over a large area. In this way one municipality could force other municipalities to come under its will and dominate them. Is there any general way in which a more fair representation could be given?
Hon. Mr. Porter: I would be very glad to go into that in more detail. … At the present time under the Planning and Development Act there is a provision made for urban zones and any of the hon members who are familiar with that Act will know that around every city, town or village there is an urban zone around the city of five miles, and within that area under that Act the Planning Commission was set up, and, under that Act, can within certain limits make a plan without consulting the municipalities within the zone at all. What we propose here is something a little different from that and I may also say in order to complete the reference to the existing legislation in that respect, that under the existing legislation the municipal board has the right to define an urban zone, with boundaries that are different from the five-mile boundary and in some cases, they have done that and some plans are in operation to-day, under that Act, but it has not been used very much. So, what we propose here is, in the first instance, whereas in many cases the need has arisen for a planning are to be defined which is not entirely co-incident with the municipal boundaries of any one municipality, -- I think the hon. Member is no doubt well aware when we are dealing with planning problems the boundaries of a municipality might have been set for one reason or another and it is a political unit, but very often for the best scope of planning it is better to have an area which covers more than one municipality. Well now, there are various ways that that can be approached and we have had a great number of proposals and it finally thought the simplest and most effective way would be that in the first place the area is to be defined by the department and that one municipality should have the carriage of the proceedings.
207 Legislative Debates - 1946 Volume 2, Page 908
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That is really what it amounts to, they should set the wheels in motion to proceed towards developing a plan for that area. Now, it is provided later on when they come to the point on the planning board where there are more than one municipalities involved, the planning board shall have to meet with the approval of the minister. Now, it could be, and it has been suggested that where it does involve more than one municipality, each municipality should have some definite separate representation on that board but in some of these areas there are a great number of municipalities that might be involved and the Board might be unwieldy and it is a very simple and easy thing as a result of negotiations through my department to work out the personnel of a board that will be mutually satisfactory to the various municipalities concerned. I might say this sort of procedure is in the experimental state and a great deal will depend on the success of the Department in attempting to work these things out. In the first place, that only applies to the setting up of a planning board and working out a plan which up to that stage has no binding effect on anybody and if it is not considered a good plan by the persons affected then it has to get the approval and be passed upon in the way that the Act provides further on. On section 9 of the Act I might say that up to that point provision is made when a plan has been formulated by the Board for this area that then it has to go to the designated municipality to be adopted and if it is adopted by that municipality it is sent to the minister of the department and then the minister must refer that plan to all municipalities that may be affected and the way it is expressed in this act it might be well to read the wording of section 9 because this is somewhat of importance: "Upon adoption the plan shall be submitted by the council to the Minster who may refer the plan to any Department of the Public Service of Ontario that may be concerned therewith and to the Hydro Electric Power Commission of Ontario and where the planning area consists of more than one municipality, the Minister shall refer the plan to the council of every municipality in the planning area and if modifications appear desirable settle such modifications as far as plural to the satisfaction of all concerned and cause the plan to be amended accordingly." Now, I realize that that is a fairly flexible provision and a great deal may depend upon the way these matters are handled in practice, but I can assure the Hon. Member in attempting to work out these problems we would very likely arrive at a situation where perhaps one out of number of municipalities may delay or hesitate to put themselves on record as formerly adopting it and it might be a practical thing to make the plan applicable to an area to cover certain aspects of the problems there and everybody will be perfectly satisfied with it, but a great deal will depend upon how careful we are in not doing anything that will be contrary to the wishes of the municipalities involved. There is very great difficulty in working out some sort of system which will provide that every municipality in an area must formerly record some approval of a plan of this kind. I might also say it is provided here that not only when a planning area is defined shall the minister find the borders but the minister shall also settle at that time what the main purposes of that plan are to be in some area. A plan over an area of some size might only refer to certain agreed projects or developments in other areas. It might be agreed
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upon that it will consider much more closely matters of land use and control of land use, and that is something which I think will have to be worked out and perhaps after we have had a year's experience under this legislation we will be in a much better position to amend the procedure if we find it does not quite cover the situation. I might say, it generally takes a great deal more than a year to work out a comprehensive plan of covering each area and we will know a great deal more by then than we do now."208
"HON. MR. PORTER (Minister of Planning and Development): Mr. Speaker, the Planning Act which has already been passed by this Legislature goes as far as the government is prepared to go in providing for housing. Section 15 to 22 give much wider powers than have ever been given before and as to expropriation of land making arrangements and contracts with government authorities or any other authorities for the purpose of housing. "209
1946 Planning. Chap. 71. 375
CHAPTER 71.
An Act respecting Planning and Development.
Assented to March 27th, 1946. Session Prorogued April 5th, 1946.
HIS MAJESTY, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows:
1. In this Act, -- (a) "council" shall mean council of a municipality or board of trustees of an improvement district; (b) "designated municipality" shall mean municipality designated by the Minister to formulate the official plan; (c) "housing project" shall mean a project designed to furnish housing accommodation together with any public space, recreational facilities and commercial space or building appropriate thereto; (d) "local board" shall mean school board, public utility commission, transportation commission, public library board, board of park management, board of health, board of commissioners of police and any other board, commission, committee, body or local authority established or exercising any power or authority under any
208 Legislative Debates - 1946 Volume 2, Page 950
209 DEBATES & PROCEEDINGS OF THE 2nd. SESSION OF THE 22nd LEGISLATURE OF THE PROVINCE OF ONTARIO. 1946. Vol 4. P. 1978
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general or special Act with respect to any of the affairs or purposes of a municipality or of two or more municipalities or portions thereof; (e) "Minister" shall mean Minister of Planning and Development; (f) "municipality" shall mean city, town, village, township or improvement district; (g) "official plan" shall mean a plan consisting of maps and explanatory texts prepared and recommended by the planning board and adopted and approved as provided in this Act, covering a planning area, and showing a programme of future development, including the regulation of the use of land, buildings and structures or the location of buildings and structures in the planning area and any other feature designed to secure the health, safety, convenience and welfare of the inhabitants; (h) "planning area" shall mean an area comprising the whole or part of one or more municipalities as defined by the Minister; (i) "public work" shall mean any municipal undertaking or improvement of a structural nature that is within the jurisdiction of the council or any local board; (j) "urban development area" shall mean an area of land designated for urban development.
2. – (1) Where a council is desirous of having an official plan, it shall make application to the Minster who may define and name a planning area. (2) Where the planning area covers more than one municipality, the Minister shall designate the municipality that shall formulate the official plan, and the scope and general purpose thereof. (3) Where the council of a municipality within a planning area is desirous of having an official plan for local purposes, the Minister may define a subsidiary planning area. (4) In defining the scope and general purpose of the official plan the Minister shall have regard among other matters to the requirements of the planning area for drainage, land uses, communications and public services.
3. When the planning area is defined, the council shall appoint the planning board, and where the planning area covers more than one municipality, the council of the designated municipality shall, subject to the approval of the Minister, appoint the planning board.
4. -- (1) Where the planning area consists of more than one municipality, the planning board shall be a body corporate consisting of three, six or nine members, a majority of whom shall not be members of a municipal council, and the head of the council of the designated municipality may be appointed as a member ex officio. (2) Where the planning area consists of one municipality only, the planning board shall be a body corporate consisting of three, six or nine members who are not members of the council or employees of the municipality or local board, and in addition there may be one member appointed from year to year from the council for every three members appointed aforesaid, and the head of the council may be appointed from year to year as a member ex officio.
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(3) Where the head of the council is a member of the planning board, he may with the approval of the council appoint a substitute to act for him from time to time. (4) The members of the planning board who are not members of a municipal council shall hold office for three years, provided that on the first appointment the council shall designate one-third of the members who shall hold office for one year and one-third who shall hold office for two years and one-third who shall hold office for three years. (5) The members of the planning board shall hold office until their successors are appointed and shall be eligible for re-appointment. (6) Where a member ceases to be a member of the planning board before the expiration of his term, the council shall appoint another eligible person for the unexpired portion of the term. (7) Two members or one-third of the members of the planning board, whichever is greater, shall constitute a quorum. (8) The planning board shall elect a chairman and vice-chairman who shall preside in the absence of the chairman. (9) The planning board shall appoint a secretary-treasurer, who may be a member of the board, and may engage such employees and consultants as is deemed expedient.
5. The execution of documents by the planning board shall be evidenced by the signature of the chairman or the vice-chairman and of the secretary-treasurer and the corporate seal of the board.
6. The planning board shall submit annually to the council an estimate of its expenditures for the ensuing year and the council may amend such estimate and shall pay to the secretary-treasurer of the board out of the moneys appropriated for the board such amounts as may be requisitioned from time to time.
7. The planning board shall investigate and survey the physical, social and economic conditions in relation to the development of the planning area and perform such other duties of a planning nature as may be referred to it by the council, and without limiting the generality of the foregoing it shall, -- (a) prepare maps, drawings, texts, statistical information and all other material necessary for the study, explanation and solution of problems or matters affecting the development of the planning area; (b) hold public meetings and publish information for the purpose of obtaining the participation and co-operation of the inhabitants of the planning area in determining the solution of problems or matters affecting the development of the planning area; (c) consult with any local board having jurisdiction within the planning area; (d) prepare a plan of the planning area and recommend it to the council for adoption; (e) recommend from time to time to the council the implementation of any of the features of the official plan.
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8. -- (1) The plan as finally prepared and recommended by the planning board shall be submitted to the council. (2) The council may adopt the plan by a vote of the majority of all the members.
9. -- (1) Upon adoption the plan shall be submitted by the council to the Minister who may refer the plan to any department of the public service of Ontario that may be concerned therewith and to The Hydro-Electric Power Commission of Ontario, and where the planning area consists of more than one municipality, the Minister shall refer the plan to the council of every municipality in the planning area, and if modifications appear desirable, settle such modifications as far as possible to the satisfaction of all concerned and cause the plan to be amended accordingly. (2) The Minister may then approve the plan, whereupon it shall be the official plan of the planning area.
10. (1) At least two, or as many as may be required, certified copies of the official plan shall be lodged by the board in the office of the Minster and in the office of the clerk of every municipality within the planning area, and shall be available at such places for public inspection during office hours. (2) At least two, or as many as may be required, duplicate originals of the official plan shall be lodged by the planning board in every registry office of lands within the planning area, where they shall be made available to the public as productions.
11. The provisions of this Act with respect to an official plan shall apply mutatis mutandis to alterations and additions thereto.
12. Notwithstanding any other Act, where an official plan is in effect, no public work that does not conform therewith shall be undertaken, except with the approval of a two-thirds affirmative vote of all members of the council of the municipality in which the public work is to be undertaken.
13. Where there is conflict between an official plan and a by-law under section 406210 of The Municipal Act, the official plan shall prevail. (**Note: Section 406 of
210 Restricted Areas. 406. -- (1) By-laws may be passed by the councils of local municipalities: 1. For prohibiting the use of land, for or except for such purposes as may be set out in the by-law, within any defined area or areas or abutting on any defined highway or part of a highway. 2. For prohibiting the erection or use of buildings, for or except for such purposes as may be set out in the by-law, within any defined are or areas or upon land abutting on any defined highway or part of a highway. 3. For regulating the cost or type of construction and the height, bulk, location, spacing, character and use of all buildings to be erected or altered within any defined area or areas or upon land abutting on any defined highway or part of a highway, and the minimum frontage of the parcel of land and the proportion of the area thereof which any such building may occupy, and any such by-law may regulate all or any of such matters. 4. For acquiring vacant land having a frontage less than the minimum frontage prescribed for such area, for the purpose of including such land in such area, and for disposing of such land. (2) No by-law passed under this section shall apply to any land or building which, on the day of passing the by-law, is used or erected for any purpose prohibited by the by-law, so long as it continues to be used for that
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the Municipal Act, expresses "Restricted Areas". Subsection 3 of 406 is for regulating the cost or type of construction. Municipalities cannot regulate the cost of construction of private property or buildings, ergo, the only restricted areas must be municipal property, as in social housing.)
14. Where lands, buildings or structures are used or buildings or structures are located in contravention of the official plan or the official plan is contravened in any other manner, in addition to any other remedy or penalty provided by law, such contravention may be restrained by action at the instance of the planning board or a ratepayer of the municipality in which the contravention took place.
15. – (1) For the purpose of developing any feature of the official plan a municipality, with the approval of the Minister, may at any time and from time to time,-- (a) acquire land within the municipality; (b) hold land heretofore or hereafter acquired within the municipality; or (c) sell, lease or otherwise dispose of land so acquired or held when no longer required. (2) For the purpose of developing any feature of the official plan a designated municipality, with the approval of the Minister, may exercise any of the powers mentioned in subsection 1 in respect of land within the planning acre, and in such case any municipality within the planning area may contribute to the cost of acquiring such land for such purpose.
16. -- (1) For the purpose of a housing project a municipality, with the approval of the Minister, may,-- (a) acquire land within the municipality; (b) hold land heretofore or hereafter acquired within the municipality; or
purpose, nor shall the by-law apply to any building that plans for which have prior to the day of the passing of the by-law been approved by the municipal architect or building inspector, so long as the building when erected is used for the purpose for which it was erected. (3) No part of any by-law passed under this section shall come into force without the approval of the Municipal Board. (4) No part of any by-law passed under this section and approved by the Municipal Board shall be repealed or amended without the approval of the Municipal Board. (5) The council, shall, in such manner and to such persons as the Municipal Board may direct, give notice of the intention of the council to apply to the Municipal Board for approval of any such by-law passed under this section. (6) Where, after an adjournment of the nearing of an application for approval of any by-law passed under this section and prior to the final hearing of the application, the by-law is amended, the Municipal Board may direct that notice of the application for approval of the amended by-law be given in such manner and to such persons as the Municipal Board may direct or may dispense with such notice, and may approve the amended by- law. (7) The Municipal Board may approve any such by-law in whole or in part and as to the whole or any part of any land, area or highway therein defined, and the Municipal Board may have regard to the restrictions on any land adjacent to such land, area or highway. (8) Such approval shall not become effective until the issue by the Municipal Board of its formal order thereof. Statutes of the Province of Ontario, Printed and Published by T. E. Bowman, Printer to the King's Most Excellent Majesty 1941, p. 109.
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(c) sell, lease or otherwise dispose of land so acquired or held for a nominal or other consideration to any person or governmental authority having power to undertake housing projects. (2) For the purpose of a housing project a municipality, with the approval of the council of the municipality in which the land is situate and the Minister, may exercise any of the powers mentioned in subsection 1 in respect of land in any adjacent municipality.
17. The provisions of The Municipal Act shall apply to the acquisition of land211 under section 15 or 16.
211 PART I 3. Where registration in a registry office is prescribed or provided for by this Act it shall mean where The Land Titles Act is applicable, registration in the office of the master or local master of titles of the locality in which the land is situate. R.S.O. 1937, c. 266, s. 3. 20. -- (1) Upon the application of any municipality authorized by by-law of the council thereof, or upon the application of the Minister of Municipal Affairs authorized by the Lieutenant-Governor in Council, or in respect of clause d upon the application of at least 25 male inhabitants, being British subjects of the full age of 21 years, the Municipal board may by order on such terms as it may deem expedient, (a) amalgamate the municipality with any other municipality or municipalities; (b) annex the whole or any part or parts of the municipality to any other municipality or municipalities; (c) annex the whole or any part or parts of any other municipality or municipalities to the municipality; or (d) annex the whole of any part or parts of any unorganized township or townships to the municipality, and any such order may amalgamate or annex a greater or smaller area or areas than the area or areas specified in the application, whether or not the municipality, municipalities, unorganized township or unorganized townships in which the area or areas is or are located is or are specified in the application. 1947, c. 69, s. 2 (1). (2) The Municipal Board before proceeding with the application of the council of any municipality under subsection 1 may require that the by-law of the council shall receive the assent of the electors of the municipality who are entitled to vote on money by-laws. 1939, c. 30, s. 2, part; 1946, c. 60, s. 3 (1). (3) The Municipal Board before making any order under subsection 1 shall hold a public hearing after such notice thereof has been given as the Board may direct for the purpose of inquiring into the merits of the application and of hearing any objections which any person may desire to bring to the attention of the Board. 1939, c. 30, s. 2, part. (4) Where in a municipality affected by a proposed annexation or amalgamation an official plan approved under The Planning Act is in effect and a by-law of a municipality is passed to authorize an application for an order of the Municipal Board under this section, and a certified copy of the by-law has been sent to the Minister of Planning and Development and to the planning board or planning boards having jurisdiction in any municipality or area affected by the application, the by-law shall not be deemed to be or be held invalid on the ground that it conflicts with the official plan. 1949, c. 61, s. 1 (1), part. (7) If a petition signed by at least 150 electors of a town, village or township, or 500 electors of a city, praying that the whole or any part of the city, town, village or township may be annexed to an adjacent municipality on such terms as may be stated in the petition, is presented to the council of the city, town, village or township, the council shall within four weeks after the presentation of the petition submit to the electors of the city, town, village or township for their assent thereto a by-law providing for such annexation on the terms mentioned in the petition, and if the by-law receives the assent of the electors the council shall forthwith make application for such annexation under subsection 1. 1939, c. 30, s. 2, part. (8) In subsection 7, "electors" means electors who are entitled to vote on money by-laws. 1946, c. 60, s. 3 (2). 29. [As to registration of by-laws, etc., erecting a village, town or city, or enlarging, diminishing or altering the boundaries of a municipality, see The Registry Act, Rev. Stat., c. 336.] PART XV – ACQUISITION OF LAND AND COMPENSATION – LAND TAKEN OR INJURIOUSLY AFFECTED. 344. In this Part, (a) "expropriation" means taking without the consent of the owner, and "expropriate" and "expropriating" have corresponding meanings; (b) "judge" means a judge of the county or district court of the county or district in which the land or any part of it is situate; (c) "land" includes a right or interest in, and an easement over, land;
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(d) "owner" includes mortgagee, lessee, tenant, occupant, and a person entitled to a limited estate or interest in land, a trustee in whom land is vested, a committee or the estate or a mentally incompetent person, an executor, an administrator, and a guardian. R.S.O. 1937, c. 266, s. 342. 345. -- (1) The council of every corporation may pass by-laws for acquiring or expropriating any land required for the purposes of the corporation, and for erecting buildings thereon, any may sell or otherwise dispose of the same when no longer so required. (2) Where in the exercise of its powers of acquiring or expropriating land it appears to the council that it can acquire a larger quantity of land from any particular owner at a more reasonable price and on terms advantageous that those upon which it could obtain the part immediately required for its purposes, the council may acquire or expropriate such larger quantity and may afterwards sell and dispose of so much of it as is not so required. (3) A by-law for entering on or expropriating land shall contain a description of the land, and, if it is proposed to expropriate an easement or other right in the nature of an easement, a statement of the nature and extent of the easement to be expropriated. R.S.O. 1937, c. 266, s. 343. 346. -- (1) Any land acquired or taken by a corporation in the exercise of the powers conferred by any general or special Act in excess of the land actually required for the opening, widening, extension or straightening of a highway may be used in or towards making compensation by way of restitution to the owner of other land taken for or in connection with the work, and the corporation may lawfully exercise such powers in pursuance of an agreement to that effect with such owner or with a view to making proposing to make such an agreement. (2) If in any arbitration proceeding to fix compensation for land taken by it, the corporation shall offer to transfer or assure additional or other land to the owner by way of enlarging the remainder of his parcel or in substitution for his parcel such offer shall be taken into account by the arbitrator and dealt with in the award, and if the aware is based on such transfer being made the offer shall be binding on the corporation in the terms fixed by the aware (subject to any right of appeal) and the offer and final award shall together constitute an agreement between the parties and the owner shall be entitled to have such additional or substituted land assured him in accordance therewith. (3) In such case upon the application of the corporation or of any interested party the Municipal Board may make such orders to compel the taking by the corporation of such additional land for the purposes of the agreement and concerning the compensation payable thereon and as to the vesting of the title to the land in accordance with the agreement as may be necessary to protect and enforce the rights of all parties interested. R.S.O. 1937, c. 266, s. 344. 347. The determination of a council as to the time when, the manner in which, the price for which or the person to whom any property of the corporation, which the council may lawfully sell, shall be sold, shall not be open to question, review, or control by any court, if the purchaser is a person who may lawfully buy and the council acted in good faith. R.S.O. 1937, c. 266, s. 345. 348. -- (1) At any time after the passing of a by-law for entering on or expropriating land, the corporation, by leave of the judge and upon payment into the Supreme Court of a sum sufficient, in the opinion of the judge, to satisfy the compensation, may enter upon the land, and if any resistance or forcible opposition is made to its so doing the judge may issue his warrant to the sheriff of the county or district in which the land lies to put the corporation in possession and to put down such resistance or opposition which the sheriff, taking with him sufficient assistance, shall accordingly do. (2) Leave of the judge and payment into Court shall not be necessary where the land is being expropriated for or in connection with the opening, widening, protecting from the erosion of streams or water, altering or diverting a highway unless upon application by the owner a judge of the Supreme Court otherwise directs. R.S.O. 1937, c. 266, s. 346. 349. -- (1) Where land is expropriated for the purposes of a corporation, or is injuriously affected by the exercise of any of the powers of a corporation under the authority of this or any general or special Act, unless it is otherwise expressly provided by such general or special Act, the corporation shall make due compensation to the owner for the land expropriated and for any damage necessarily resulting from the expropriation of the land, or where land is injuriously affected by the exercise of such powers for the damages necessarily resulting therefrom, beyond any advantage which the owner may derive from any work for the purposes of or in connection with which the land is injuriously affected. (2) The amount of the compensation, if not mutually agreed upon, shall be determined by arbitration. (3) Where fencing or additional fencing will become necessary, owing to land having been expropriated, the cost of it shall be included in the compensation. (4) Where part only of the land of an owner is expropriated, there shall be included in the compensation a sum sufficient to compensate him for any damages directly resulting from severance. R.S.O. 1937, c. 266, s. 347. 360. -- (1) Where the arbitration is as to compensation, if the expropriating by-law did not authorize or profess to authorize any entry on or use to be made of the land before the award, except of the purpose of survey, or if the by- law gave or professed to give such authority, but the arbitrator by his award finds that it was not acted upon, the award shall not be binding on the corporation, unless it is adopted by by-law within three months after the making of the award, or after the determination of any appeal therefrom, and if it is not so adopted the expropriating by-law shall
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18. When a municipality has acquired or holds lands for any purpose authorized by this Act, the municipality may clear, grade or otherwise prepare the land for the purpose for which is has been acquired or is held.
19. When a municipality acquires land for any purpose authorized by this Act, the whole or partial consideration therefor may be land then owned by the municipality.
be deemed to be repealed, and the corporation shall pay the costs between solicitor and client of the reference and award, and shall also pay to the owner the damages, if any sustained by him in consequence of the passing of the by-law, and such damages if not mutually agreed upon shall be determined by arbitration and if the by-law has been registered or a caution is respect of it has been filed, the corporation shall forthwith cause a certification's seal, stating that the by-law stands repealed, to be registered in the property registry office or the caution to be removed, as the case may be. (2) Where the expropriating by-law did not authorize or profess to authorize any entry on or use to be made of the land except for the purpose of survey, or if the by-law gave or professed to give such authority but it has not been acted on, the council may at any time before the making of the award, and whether or not arbitration proceedings have been begun, repeal the by-law, and if that is done the repealing by-law, if the expropriating by-law has been registered, shall be registered forthwith by the corporation in the proper registry office, or in the land is under The Land Titles Act and a caution has been filed, the corporation shall forthwith remove the caution and the costs and damages mentioned in subsection 1 shall be paid by the corporation as therein provided. R.S.O. 1937, c. 266, s. 357 (1, 2). 437. -- (1) The corporation of adjoining municipalities may enter into an agreement for the maintenance and repair of any highway forming the boundary between such municipalities, including bridges thereon which it is their duty to maintain and repair, whereby each of them may undertake, for a term of years not to exceed 10 years, to maintain and keep in repair any portion of such highway for its whole width, and to indemnify and save harmless the other from any loss or damage arising from the want or repair of such portion. (2) When the agreement is confirmed by by-law of the council of each of the municipalities, the by-law shall be registered in the registry office of the registry division in which the highway is situate. (3) After the registration of the by-law, each corporation shall have jurisdiction over that portion of the road which it has undertaken to maintain and keep in repair, and shall be liable for the damages incurred by reason of neglect to maintain and keep the same in repair, and the other corporation shall be relieved from all liability in respect of its maintenance and repair. R.S.O. 1937, c. 266, s. 464. 442. -- (6) If the order declares the bridge to be a county bridge it shall be registered in the registry office of the registry division in which the bridge is situate. 456. The approval of a plan subdivision under The Planning Act and the registration thereof shall not be deemed to be an assumption by the corporation of the municipality wherein the land comprised in the plan is situate of any highways shown on the plan so as to render the corporation liable for repair, or for damages resulting from non-repair within the meaning of section 453. 1949, c. 61, s. 23. 453. -- (1) Every highway and every bridge shall be kept in repair by the corporation the council of which has jurisdiction over it, or upon which the duty of repairing it is imposed by this Act, and in case of default the corporation shall, subject to the provisions of The Negligence Act, be liable for all damages sustained by any person by reason of such default. …R.S.O. 1937, c. 266, s. 480 (1, 2). 476. -- (1) No highway shall be laid out in any municipality without the sanction of the council of the municipality. (2) No highway less than 66 feet in width or, except in a city or town, more than 100 feet in width, shall be laid out by the council of the municipality without the approval of the Municipal Board or by any owner of land without the approval of the council of the municipality and of the Municipal Board. R.S.O. 1937, c. 266, s. 502 (1, 2). (3) Nothing in this section shall affect the provisions of The Planning Act. 1949, c. 61, s. 25. (4) Subsection 2 shall not apply to a township in unorganized territory, and a highway less than 66 feet in width may be laid by the council of any such township subject to and in accordance with the regulations of the Department of Lands and Forests. (5) It is hereby declared that subsection 2 does not apply, and has never applied to any lane laid out in the rear of lands abutting on another highway or to any outlet connecting such a lane with a highway. R.S.O. 1937, c. 266, s. 502 (4, 5).
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20. To relieve the existing emergency in housing conditions a municipality, with the approval of the Minister, may erect, maintain, manage and wind up projects for temporary housing accommodation either within or outside the municipality.
21. A municipality, with the approval of the Minister may enter into agreements with any person or governmental authority for sharing or contributing to the capital cost or the maintenance cost of housing projects.
22. A municipality, with the approval of the Minister, may enter into an agreement with any person or governmental authority undertaking a housing project to provide that certain specified uses of land in a specified area surrounding the project will be maintained for the period specified in the agreement.
23. -- (1) The council may by by-law designate any area within the municipality as an urban development area and thereupon no parcel of land within the area shall be divided for sale or sold in part or agreed to be sold in part unless the land is shown on a registered plan of subdivision. (2) At least two, or as many as may be required, certified copies of the by-law shall be lodged in the office of the Minister where the same shall be available for public inspection during office hours and in the proper registry office where the same shall be made available to the public as productions. (3) When an area is designated as an urban development area it shall not be altered or dissolved without the approval of the Minister. (4) Every person who divides for sale, sells in part or agrees to sell in part land in contravention of this section shall be guilty of an offense and liable to a penalty of not more than $500, recoverable under The Summary Convictions Act.
24. -- (1) The Minister, with respect to any land in Ontario that is not covered by an official plan or is not within the scope of a by-law passed under section 406212 of The Municipal Act, may by order, --
212 [12]. 406. -- (1) By laws any be passed by the councils of local municipalities: Restricted Areas. 1. For prohibiting the use of land, for or except for such purposes as may be set out in the by-law, within any defined area or areas or abutting on any defined highway or part of a highway. 2. For prohibiting the erection or use of buildings, for or except for such purposes as may be set out in the by-law, within any defined area or areas or upon land abutting on any defined highway or part of a highway. 3. For regulating the cost or type of construction and height, bulk, location, spacing, character and use of all buildings to be erected or altered within any defined area or areas or upon land abutting on any defined highway or part of a highway, and the minimum frontage of the parcel of land and the proportion of the area thereof which any such building may occupy, and any such by-law may regulation all or any of such matters. 4. For acquiring vacant land having a frontage less than the minimum frontage prescribed for such area, for the purpose of including such land in such area, and for disposing of such land. (2) No by-law passed under this section shall apply to any land or building which, on the day of the passing of the by- law, is used or erected for any purpose prohibited by the by-law, so long as it continues to be used for that purpose, nor shall the by-law apply to any building the plans for which have prior to the day of the passing of the by-law been approved by the municipal architect or building inspector, so long as the building when erected is used for the purpose for which it was created. (3) No part of any by-law passed under this section shall come into force without the approval of the Municipal Board. (4) No part of any by-law passed under this section and approved by the Municipal Board shall be repealed or amended without the approval of the Municipal Board.
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(a) without the approval of the Ontario Municipal Board, exercise any of the powers conferred upon councils by the said section 406; or (b) exercise the powers conferred upon councils by thing Act to designate an urban development area. (2) The Minister may give notice of any such order in such manner as he deems expedient.
25. -- (1) Every person213 desiring to subdivide land into lots for the purpose of sale shall forward at least four, or as many as may be required, copies of a draft plan thereof drawn to scale together with an application for approval to the Minister and shall, unless the land is situate in unorganized territory, forward two copies of such plan, -- (**Note: "every person" includes municipalities and Housing Enterprises Limited) (a) where the land is not situate within a planning area, to the council of the municipality in which the land is situate; (b) where the land is situate within a planning area, to the planning board; or (c) where the land is situate within a subsidiary planning area, to each planning board. (2) The draft plan shall show the boundaries of the land to be subdivided, certified by an Ontario land surveyor, and shall indicate,-- (a) locations, widths and names of proposed highways; (b) every adjoining subdivision and the relationship thereto of the lands proposed to be subdivided, and where the adjoining land is not subdivided, the relationship of the boundaries of the land to be subdivided to the boundaries of the township lot or other original grant of which such land forms the whole or part; (c) the purpose for which the lots are to be used; (d) the nature of the existing uses of adjoining land; (e) the approximate dimensions and layouts of the proposed lots; (f) natural and artificial features such as buildings, railways, highways, watercourses, drainage ditches, swamps and wooded area within or adjacent to the land proposed to be subdivided; (g) the availability and nature of domestic water supplies;
(5) The council shall, in such manner and to such persons as the Municipal Board may direct, give notice of the intention of the council to apply to the Municipal Board for approval of any by-law passed under this section. (6) Where, after an adjournment of the hearing of an application for approval of any by-law passed under this section and prior to the final hearing of the application, the by-law is amended, the Municipal Board may direct that notice of the application for approval of the amended by-law be given in such manner and to such persons as the Municipal Board may direct or may dispense with such notice, and may approve the amended by-law. (7) The Municipal Board may approve any such by-law in whole or in part and as to the whole or any part of any land, area or highway therein defined, and the Municipal Board may have regard to the restrictions on any land adjacent to such land, area or highway. (8) Such approval shall not become effective until the issue by the Municipal Board of its formal order thereof. [SECTION 12 – Subsection 1. This section of the Bill re-enacts the numerous provisions of The Municipal Act which deal with by-laws for restricting the use of land and buildings and for controlling the construction of buildings, and required the approval of the Ontario Municipal Board to be given to such by-laws.] No. 92 The Municipal Amendment Act, 1941.
213 "The proposal, at that time, of course, was that the whole housing development be given over to Housing Enterprises Limited, which was organized by certain investment and insurance companies…" Legislative Debates - 1949 Volume 2, Page 890
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(h) the nature and porosity of the soil; (i) such contours or elevations as may be required to determine the grade of the highways and the drainage of the land; and (j) the municipal services available or to be available to the land proposed to be subdivided. (3) The Minister may then confer with officials of municipalities and departments of the public service, commissions, authorities and any others who may be concerned and shall settle a draft plan that, in his opinion, will meet all requirements. (4) In considering a draft plan of subdivision regard shall be had, among other matters, to the health, safety, convenience and welfare of the future inhabitants and to the following,-- (a) whether the plan conforms to the official plan and adjacent plans of subdivision, if any; (b) whether the subdivision is premature or necessary in the public interest; (c) the suitability of the land for the purposes for which it is being subdivided; (d) the number, width, location and proposed grades and elevations of highways, and the adequacy thereof; (e) the dimensions and shape of the lots; (f) the restrictions or proposed restrictions, if any, on the land, buildings and structures proposed to be erected thereon and the restrictions, if any, on adjoining lands; (g) conservation of natural resources and flood control; (h) the adequacy of utilities and municipal services; and (i) the area of land, if any, within the subdivision that, exclusive of highways, is to be dedicated for public purposes. (5) Upon settlement of the draft plan, the Minister may give his approval thereto. (6) When the draft plan is approved, the person desiring to subdivide may proceed to lay down the highways and lots upon the ground in accordance with The Surveys Act, The Registry Act214 or The Land Titles Act, as the case may be, and to prepare a plan accordingly certified by an Ontario land surveyor.
214 84.—(1) Where land is surveyed and subdivided for the purpose of being sold or conveyed in lots by reference to a plan which has not been already registered the person making the survey and subdivision shall within three months thereafter register a plan of the land on a scale not less than one inch to every four chains. (2) The plan shall show the number of the township, city, town or village lots and range or concession as originally laid out, and all the boundary lines thereof, within the limits of the land being subdivided except where the plan is a subdivision of a lot or lots on a former plan, in which case it shall show the numbers or other distinguishing marks of the lot or lots subdivided and the boundary lines thereof. (5) The plan shall also show all roads, streets, railway land, rivers, canals, streams, lakes, mill-ponds, marshes or other marked topographical features within the limits of the land so subdivided, together with such other information as is required to show distinctly the position of the land. (8) The plan, before being registered, shall be signed by the person or the chief officer of the corporation by whom or on whose behalf the plan is deposited, and shall also be certified by an Ontario land surveyor (Form 13). (14) Any public or private street, way, lane or alley or block, tract or lot, being the only access to a lot or lots laid down on a plan of survey and subdivision, shall, for the purposes of this section, be deemed to be a street or highway. (15) The registrar shall not register a plan of a subdivision of land for which the Crown patent has not issued unless the assent of the Minister of Lands and Forests to the registration is endorsed on the plan.
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(7) Upon presentation by the person desiring to subdivide the Minister may, if satisfied that the plan is in conformity with the approved draft plan, approve the plan of subdivision and thereupon the plan of subdivision may be tendered for registration. (8) A true copy of every plan of subdivision as registered shall be lodged by the person who tendered it for registration in the office of the Minister, and when the land subdivided is in a planning area, with the secretary-treasurer of the planning board.
26. Every long laid out on a plan of subdivision shall front or abut on a public highway.
27. Every person who subdivides and offers for sale, agrees to sell or sells land by a description in accordance with an unregistered plan of subdivision shall be guilty of an offence and liable to a penalty of not more than $500, recoverable under The Summary Convictions Act.
28. Where under this Act the approval of the Minister is required, the Minister may, and upon application therefor shall, refer the matter to the Ontario Municipal Board in which case the approval of the Board shall have the same force and effect as if it were the approval of the Minister.
29. The urban zones under The Planning and Development Act shall remain subject to the provisions of the said Act for a period of one year from the day upon which this Act comes into force, provided that if during such year any part of an urban zone is brought within a planning area, the said Act shall cease to apply to such zone and provided that during such year the provisions of this Act with respect to subdivision plans shall apply whether or not the land subdivided is in an urban zone, but in all other respects The Planning and Development Act shall cease to have any force and shall be repealed one year after such day.
30. This Act shall come into force on the day upon which it receives Royal Assent and the provisions thereof with respect to housing projects shall be deemed to have come into effect on the 1st day of January, 1942.
31. This Act may be cited as The Planning Act, 1946.
The Ontario Municipal Board was created to ensure that Municipalities did not become financially embarrassed. This is still the case today as under section 20 of Municipal Affairs Act, R.S.O. 1990, CHAPTER M.46, Consolidation Period: From June 1, 2011 to the e-Laws currency date.
(18) No plan of survey or subdivision to which The Planning Act applies shall be registered unless approved under that Act. 1947, c. 101, s. 17 (3). CHAPTER 336, The Registry Act. Revised Statutes of Ontario Volume 4 page 397
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Special municipal jurisdiction of Board 20. (1) The Board has and may exercise the special jurisdiction and powers conferred by this Part, whenever, upon request of the Ministry or of a municipality expressed by resolution of its council, or upon request of the creditors of a municipality having claims representing not less than 20 per cent of its indebtedness, including debenture debt, it is satisfied upon inquiry that the municipality, (a) has failed to meet and pay any of its debentures or interest thereon when due and after payment thereof has been duly demanded; (b) has failed to meet and pay any of its other debts or liabilities when due and default in payment is occasioned from financial difficulties affecting the municipality; or (c) has or may become financially involved or embarrassed so that default or unusual difficulty in meeting debts or obligations or in providing adequate funds to meet current expenditures may ensue, or has failed to levy the necessary rates to meet current expenditures.
"MR WALTERS:…Here are several short paragraphs which Blair Fraser wrote, and I think they are worthy of note. He says : "Builders and lenders both seem to agree that government building for the low- income tenant will be necessary. Allan C. Ross, president of the Canadian Construction Association, told his annual meeting that low-rental housing for the low-income group is only possible with some form of government assistance. 'A resolution at the same meeting called for adoption, as a social measure, of a modest, national, long-term, low-rental housing plan.' " 'We mean subsidized housing,' a member explained. 'We wiggle around to avoid using the word, but that's what we mean just the same.' "Governments are much less enthusiastic about this—they know the headaches of the state landlord. Who would choose the lucky few to live in the nice new subsidized homes? "Other obstacles face private as well as public schemes for large-scale building, and the worst of these is the shortage of serviced land. "All the major cities of Canada except Montreal and Edmonton are solidly built up to their own municipal limits. Beyond the city limits are suburban towns with plenty of empty land, but no money to install new services—sewers, water, lighting, etc. "There are at least two ways out of this dilemma, and probably more. One is a reform of municipal finance. Somehow, by annexation or borough system, the great metropolitan areas will have to pool their tax resources to carry their common burden. Tax-rich Toronto, would then help tax-poor North York, and so on all the way from Greater Halifax to Greater Vancouver."215
215 Legislative Debates - 1949 Volume 2, Page 775
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"MR. W. DENNISON (CCF St. David) : Mr. Speaker, I would like to deal with housing, a matter which I am sure has given hon. members on both sides of the House a considerable problem over the past few years. I want to deal in particular with the section in my own riding, known as the Regent Park section, which will become the first section in the dominion where the slum area is being removed and replaced by a housing development. I would like to go back to the history of this development. The development started back in 1944, before the end of the war, when this city authorized its Planning Board to make a study of the area and report on that study… The basis on which they proceeded to estimate for subsidies was on assistance in getting the land from the owners and building the houses. The proposal, at that time, of course, was that the whole housing development be given over to Housing Enterprises Limited, which was organized by certain investment and insurance companies… The basis of that agreement was that the province—I do not think they ever got a real promise from the province—but they hoped the province would give $400,000, the City of Toronto would give $400,000, and the Dominion Government promised $800,000, a total of $1,600,000. This was to be used to purchase land and clear the land. "216
"HON. HAROLD R. SCOTT (PC Minister of Lands and Forests) : Unfortunately, a great many of these lands were patented before we had control of them. This is land that is already patented. We have nothing more to say whatever about it except that we control the pine trees on it. We take into consideration where a man has made an attempt to establish a farm by clearing and putting in fifteen acres or more. In that case, we give him back pine. Of course, he may have owned this land since 1880."217
As expressed in the original Planning Act, as well as today's Planning Act, if the municipality has not acquired it, they do not have the authority to plan for it. That was and is the intent of the legislators and the legislation. This was documented in 1969.
"5. DEVELOPMENT CONTROL & URBAN RENEWAL Section 20 to 29 of the Planning Act set out the statutory controls available to municipalities if they which to actively guide urban development and redevelopment according to a rational Plan. Sections 20 to 25 deal with the special topic of redevelopment and Sections 26 to 29 deal with the subdivision control and related controls. Under section 20 of the Planning Act any Council of a municipality which has an Official Plan in effect may by By-law, with the Minister's approval, designate all or part of the Planning Area as a "redevelopment area". In this redevelopment area, the municipality may acquire, hold, clear and grade the land, and my prepare and adopt by By-law a redevelopment plan which conforms with the Official Plan.
216 Legislative Debates - 1949 Volume 2, Page 890
217 Legislative Assembly – Debates - Volume 3, Page 1463
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In order to implement the redevelopment plan, the municipality may construct, improve, sell or lease buildings and sell or lease land in conformity with the redevelopment plan. In the period after designation of the redevelopment area and before a zoning by-law is passed in conformity with the redevelopment plan, (a period which is often quite long) anyone buying property previously acquired by the municipality must agree to use the property only in conformity with the redevelopment plan, (until a new zoning by-law is passed) but the municipality may, during the development of the plan, (with the Minister's approval) lease property to be used for any purpose whether or not conforming with the redevelopment plan for a term not exceeding 3 years at one time. Also, the municipality may make agreements with provincial government agencies for making studies and carrying our redevelopment plans. The National Housing Act, section 23 allows the Federal government to share the cost of renewal schemes with the local municipality…."218
To fully understand what is involved in the connection between the Planning Act and the Municipal Act, one must read both documents in conjunction with each other. For example, in the Municipal Act, 1960, in regards to annexation the Planning Act, the Ontario Municipal Board and the prescribed age of 21 are involved. It states:
14.— (1) In this section, "local board" means a local board as defined in The Department of Municipal Affairs Act. (2) Upon the application of any municipality authorized by by-law of the council thereof or upon the application of the Minister of Municipal Affairs authorized by the Lieutenant Governor in Council, or in respect of claused upon the application of at least twenty-five inhabitants, being British subjects of the full age of twenty-one years, the Municipal Board may by order on such terms as it may deem expedient, (a) amalgamate the municipality with any other municipality or municipalities; (b) annex the whole or any part or parts of the municipality to any other municipality or municipalities; (c) annex the whole or any part or parts of any other municipality or municipalities to the municipality; or (d) annex any locality that does not form part of any municipality to the municipality, and any such order may amalgamate or annex a greater or smaller area or areas than the area or areas specified in the application, whether or not the municipality, municipalities, or locality not forming part of a municipality, in which the area or areas is or are located, is or are specified in the application. (3) The Municipal Board, before proceeding with the application of the council of any municipality under subsection 2, may require that the by-law of the council shall receive the assent of the electors of such municipality who are entitled to vote on money by-laws. (4) The Municipal Board, before making any order under subsection 2, shall hold a public hearing, after such notice thereof has been given as the Board may
218 The Ontario Water Resources Commission, How Planning Works in Ontario, August, 1969 ,page 7 and 8
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direct, for the purpose of inquiring into the merits of the application and of hearing any objections that any person may desire to bring to the attention of the Board. (5) Where in a municipality affected by a proposed annexation or amalgamation an official plan approved under The Planning Act or a predecessor thereof is in effect and a by-law of a municipality is passed to authorize an application for an order of the Municipal Board under this section, and a certified copy of the by-law has been sent to the Minister of Planning and Development before the 1st day of April, 1960, or to the Minister of Municipal Affairs on or after that date and to the planning board or planning boards having jurisdiction in any municipality or area affected by the application, the by-law shall not be deemed to be or be held invalid on the ground that it conflicts with the official plan. Etc. 18. Except where otherwise ordered by the Municipal Board, where a locality or a municipality is annexed to a municipality, the by-laws of the latter municipality extend to the locality or annexed municipality and the by-laws then in force in the locality or annexed municipality cease to apply to it, except by-laws relating to highways, by-laws designating areas of subdivision control and by-laws passed under section 30 of The Planning Act or a predecessor of such section or which are kept in force by subsection 3 of section 13 of The Municipal Amendment Act, 1941, which shall remain in force until repealed by the council of the annexing municipality, and except by-laws conferring rights, privileges, franchises, immunities or exemptions that could not have been lawfully repealed by the council that passed them. 1954, c. 56, s. 1, part.
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THE PLANNING ACT
10/11. 2. 4. Public assets of the municipality acquired for the purpose of exercising its authority under this or any other Act;219 “municipal property asset” means an asset of the municipality that is land, equipment or other goods.220 ECONOMIC DEVELOPMENT SERVICES - means, in respect of a municipality, the promotion of the municipality by the municipality for any purpose by the collection and dissemination of information and the acquisition, development and disposal of sites by the municipality for industrial, commercial and institutional uses.221
Under section 1 of the Planning Act are definitions. It is expressed that "“provincial plan” means, (d) a development plan approved under the Ontario Planning and Development Act 1994" (OPD). What is missing from the OPD is a definition of what "official plan" actually means. In the document under section 1222 it refers the reader to section 1 of the Planning Act for a definition of official plan. There is no definition, in section 1, of the Planning Act. It would seem that the OPD is misleading the reader and the OPD may not, due to lack of interpretation, actually stand.
Continuing with section 1 of the Planning Act it states that “public work” means any improvement of a structural nature or other undertaking that is within the jurisdiction of the council of a municipality or a local board". Please note the statement of "structural nature" and under the definition of “residential unit” means a unit that, (a) consists of a self-contained set of rooms located in a building or structure". This reference to "structure" is supported by the report, in 2009, "Social Housing Renovation and Retrofit Program (SHRRP), Program Guidelines, June 2009", which expresses, to municipalities:
219 Municipal Act, Section 10 and 11
220 O. Reg. 599/06, s. 14 (2).
221 Municipal Act, Section 1
222 Ontario Planning and Development Act, 1994, S.O. 1994, CHAPTER 23, SCHEDULE A Last amendment: 2006, c. 21, Sched. F, s. 136 (1). “official plan” means an official plan as defined in section 1 of the Planning Act; (“plan officiel”) **Note: there is no definition of "official plan" in section 1 of the Planning Act. Power to acquire land 19. (1) For the purpose of developing any feature of a development plan, the Minister may, in the name of Her Majesty, acquire by purchase, lease or otherwise or, subject to the Expropriations Act, expropriate any land or interest in it within the area covered by the plan and sell, lease or otherwise dispose of any such land or interest. 1994, c. 23, Sched. A, s. 19 (1). Designated minister (2) The Lieutenant Governor in Council may designate any minister of the Crown to have responsibility over any land acquired under subsection (1) and the minister so designated may, for the purpose of developing any feature of the development plan, (a)clear, grade or otherwise prepare the land for development or construct, repair or improve buildings, works and facilities on it; or (b)sell, lease or otherwise dispose of any of the land or interest in it. 1994, c. 23, Sched. A, s. 19 (2).
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"Social Housing Renovation and Retrofit Program – Highlights The Social Housing Renovation and Retrofit Program (SHRRP) is a capital grant program that funds the repair and regeneration of eligible social housing projects. The SHRRP will: • Improve the health and safety of residents living in social housing communities • Provide enhanced accessibility for seniors and persons with disabilities • Contribute to the reduction of social housing project operating costs • Assist in the reduction of waiting lists for social housing, including restoration of vacant or abandoned units."223
And section 13 of the Housing Development Act states:
Incorporation of non-profit housing corporation 13. (1) A municipality, either solely or together with one or more other persons, may incorporate under the laws of Ontario one or more non-profit housing corporations having as the objects of incorporation the provision and operation of housing accommodation with or without any public space, recreational facilities and commercial space or buildings appropriate thereto primarily for persons of low or modest income at rentals below the current rental market in the area in which the accommodation is located. R.S.O. 1990, c. H.18, s. 13 (1). Provisions applicable to corporation incorporated by municipality (2) A municipality that incorporates a corporation as referred to in subsection (1) may own or control all or any part of the shares, capital or assets, as the case may be, of the corporation, provided however that, notwithstanding any of the provisions of the Corporations Act or the Business Corporations Act, the directors of the corporation shall not declare, nor the corporation pay, any dividends on any issued shares of the corporation, and no part of the income of the corporation shall be payable to or otherwise available for the personal benefit of any shareholder or member of the corporation and its letters patent, supplementary letters patent or articles may so provide. R.S.O. 1990, c. H.18, s. 13 (2). Acquisition of land by corporation (3) Where a corporation is incorporated as referred to in subsection (1), the corporation shall not acquire lands for its purposes except with the approval of the Minister or except in accordance with the provisions of an official plan or a policy statement, which official plan provisions or policy statement have been approved by the Minister under section 17. R.S.O. 1990, c. H.18, s. 13 (3). Approval not required (4) Section 65 of the Ontario Municipal Board Act does not apply to a corporation as referred to in subsection (1). R.S.O. 1990, c. H.18, s. 13 (4).
Under section 1 subsection 3 Designation224, the Minister of Municipal Affairs may designate any other ministry of the Province as a public body. Under subsection 2225
223 "Social Housing Renovation and Retrofit Program (SHRRP), Program Guidelines, June 2009", P. 1
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the term public body excludes all other ministries other than the Ministry of Municipal Affairs in regards to the following sections: 17 (24)226, (36)227 and (40)228, 22 (7.4)229, 34 (19)230, 38 (4)231, 45 (12)232, 51 (39)233, (43)234 and (48)235 and 53 (19)236 and (27)237
224 (3) Despite subsection (2), the Minister may by regulation designate any other ministry of the Province of Ontario to be a public body for the purpose of the provisions referred to in subsection (2). 1996, c. 4, s. 1 (4).
225 (2) The term “public body” in subsection (1) excludes all ministries of the Province of Ontario except the Ministry of Municipal Affairs and Housing in respect of subsections (appeals)…
226 Approvals 17. (1) Except as otherwise provided in this section, the Minister is the approval authority in respect of the approval of a plan as an official plan for the purposes of this section. 1996, c. 4, s. 9 Right to appeal (24) If the plan is exempt from approval, any of the following may, not later than 20 days after the day that the giving of notice under subsection (23) is completed, appeal all or part of the decision of council to adopt all or part of the plan to the Municipal Board by filing a notice of appeal with the clerk of the municipality: 1. A person or public body who, before the plan was adopted, made oral submissions at a public meeting or written submissions to the council. 2. The Minister. 3. The appropriate approval authority. 4. In the case of a request to amend the plan, the person or public body that made the request. 2006, c. 23, s. 9 (4).
227 Appeal to O.M.B. (36) Any of the following may, not later than 20 days after the day that the giving of notice under subsection (35) is completed, appeal all or part of the decision of the approval authority to the Municipal Board by filing a notice of appeal with the approval authority: 1. A person or public body who, before the plan was adopted, made oral submissions at a public meeting or written submissions to the council. 2. The Minister. 3. In the case of a request to amend the plan, the person or public body that made the request. 2006, c. 23, s. 9 (6). No appeal re second unit policies (36.1) Despite subsection (36), there is no appeal in respect of the policies described in subsection 16 (3), including, for greater certainty, any requirements or standards that are part of such policies. 2011, c. 6, Sched. 2, s. 3 (2). Exception (36.2) Subsection (36.1) does not apply to an official plan or official plan amendment adopted in accordance with subsection 26 (1). 2006, c. 23, s. 9 (6).
228 Appeal to O.M.B. (40) If the approval authority fails to give notice of a decision in respect of all or part of a plan within 180 days after the day the plan is received by the approval authority, any person or public body may appeal to the Municipal Board with respect to all or any part of the plan in respect of which no notice of a decision was given by filing a notice of appeal with the approval authority. 1996, c. 4, s. 9; 2004, c. 18, s. 3 (1).
229 Appeal to O.M.B. (7) When a person or public body requests an amendment to the official plan of a municipality or planning board, any of the following may appeal to the Municipal Board in respect of all or any part of the requested amendment, by filing a notice of appeal with the clerk of the municipality or the secretary-treasurer of the planning board, if one of the conditions set out in subsection (7.0.2) is met: 1. The person or public body that requested the amendment. 2. The Minister. 3. The appropriate approval authority. 2006, c. 23, s. 11 (5). Exception (7.4) Despite subsection (7.1), a person or public body may appeal to the Municipal Board in respect of all or any part of a requested amendment described in clause (7.2) (a) or (b) if the requested amendment, (a) is in respect of the official plan of a lower-tier municipality; and (b) conforms with the official plan of the upper-tier municipality. 2006, c. 23, s. 11 (6).
230 Zoning by-laws 34. (1) Zoning by-laws may be passed by the councils of local municipalities: Restricting use of land 1. For prohibiting the use of land, for or except for such purposes as may be set out in the by-law within the municipality or within any defined area or areas or abutting on any defined highway or part of a highway. Appeal to O.M.B. (19) Not later than 20 days after the day that the giving of notice as required by subsection (18) is completed, any of the following may appeal to the Municipal Board by filing with the clerk of the municipality a notice
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of appeal setting out the objection to the by-law and the reasons in support of the objection, accompanied by the fee prescribed under the Ontario Municipal Board Act: 1. The applicant. 2. A person or public body who, before the by-law was passed, made oral submissions at a public meeting or written submissions to the council. 3. The Minister. 2006, c. 23, s. 15 (10). No appeal re second unit policies (19.1) Despite subsection (19), there is no appeal in respect of a by-law that gives effect to the policies described in subsection 16 (3), including, for greater certainty, no appeal in respect of any requirement or standard in such a by-law. 2011, c. 6, Sched. 2, s. 5.
231 Interim control by-law 38. (1) Where the council of a local municipality has, by by-law or resolution, directed that a review or study be undertaken in respect of land use planning policies in the municipality or in any defined area or areas thereof, the council of the municipality may pass a by-law (hereinafter referred to as an interim control by-law) to be in effect for a period of time specified in the by-law, which period shall not exceed one year from the date of the passing thereof, prohibiting the use of land, buildings or structures within the municipality or within the defined area or areas thereof for, or except for, such purposes as are set out in the by-law. Appeal to O.M.B. (4) Any person or public body to whom notice of a by-law was given under subsection (3) may, within sixty days from the date of the passing of the by-law, appeal to the Municipal Board by filing with the clerk of the municipality a notice of appeal setting out the objection to the by-law and the reasons in support of the objection. R.S.O. 1990, c. P.13, s. 38 (4); 1994, c. 23, s. 23 (2).
232 Powers of committee 45. (1) The committee of adjustment, upon the application of the owner of any land, building or structure affected by any by-law that is passed under section 34 or 38, or a predecessor of such sections, or any person authorized in writing by the owner, may, despite any other Act, authorize such minor variance from the provisions of the by-law, in respect of the land, building or structure or the use thereof, as in its opinion is desirable for the appropriate development or use of the land, building or structure, if in the opinion of the committee the general intent and purpose of the by-law and of the official plan, if any, are maintained. R.S.O. 1990, c. P.13, s. 45 (1); 2006, c. 23, s. 18 (1); 2009, c. 33, Sched. 21, s. 10 (11). Appeal to O.M.B. (12) The applicant, the Minister or any other person or public body who has an interest in the matter may within 20 days of the making of the decision appeal to the Municipal Board against the decision of the committee by filing with the secretary-treasurer of the committee a notice of appeal setting out the objection to the decision and the reasons in support of the objection accompanied by payment to the secretary-treasurer of the fee prescribed by the Municipal Board under the Ontario Municipal Board Act as payable on an appeal from a committee of adjustment to the Board. 1994, c. 23, s. 26 (2).
233 Plan of subdivision approvals 51. (1), (2) REPEALED: 2002, c. 17, Sched. B, s. 19 (1). Appeal (39) Subject to subsection (43), not later than 20 days after the day that the giving of notice under subsection (37) is completed, any of the following may appeal the decision, the lapsing provision or any of the conditions to the Municipal Board by filing with the approval authority a notice of appeal that must set out the reasons for the appeal, accompanied by the fee prescribed under the Ontario Municipal Board Act: 1. The applicant. 2. A person or public body who, before the approval authority made its decision, made oral submissions at a public meeting or written submissions to the approval authority. 3. The Minister. 4. The municipality in which the land is located or the planning board in whose planning area the land is located. 5. If the land is not located in a municipality or in the planning area of a planning board, any person or public body. 2006, c. 23, s. 22 (8).
234 Appeal 51. (43) At any time before the approval of the final plan of subdivision under subsection (58), any of the following may appeal any of the conditions to the Municipal Board by filing with the approval authority a notice of appeal that must set out the reasons for the appeal, accompanied by the fee prescribed under the Ontario Municipal Board Act: 1. The applicant. 2. A public body that, before the approval authority made its decision, made oral submissions at a public meeting or written submissions to the approval authority. 3. The Minister. 4. The municipality in which the land is located or the planning board in whose planning area the land is located. 5. If the land is not located in a municipality or in the planning area of a planning board, any public body. 2006, c. 23, s. 22 (9).
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And yet under section 1 "“public body” means a municipality, a local board, a ministry, department, board, commission, agency or official of a provincial or federal government or a First Nation" and in the Municipal Act a:
“local board” means any school board, public utility commission, transportation commission, public library board, board of park management, board of health, police services board, planning board or any other board, commission, committee, body or local authority established or exercising any power or authority under any general or special Act with respect to any of the affairs or purposes of a municipality or of two or more municipalities or portions thereof; Municipal Act, 2001, S.O. 2001, CHAPTER 25"
235 Appeal (48) Any of the following may appeal any of the changed conditions imposed by the approval authority to the Municipal Board by filing with the approval authority a notice of appeal that must set out the reasons for the appeal, accompanied by the fee prescribed under the Ontario Municipal Board Act: 1. The applicant. 2. A person or public body who, before the approval authority gave approval to the draft plan of subdivision, made oral submissions at a public meeting or written submissions to the approval authority or made a written request to be notified of changes to the conditions. 3. The Minister. 4. The municipality in which the land is located or the planning board in whose planning area the land is located. 5. If the land is not located in a municipality or in the planning area of a planning board, any person or public body. 2006, c. 23, s. 22 (10).
236 Consents 53. (1) An owner of land or the owner’s agent duly authorized in writing may apply for a consent as defined in subsection 50 (1) and the council or the Minister, as the case may be, may, subject to this section, give a consent if satisfied that a plan of subdivision of the land is not necessary for the proper and orderly development of the municipality. 1994, c. 23, s. 32. Appeal (19) Any person or public body may, not later than 20 days after the giving of notice under subsection (17) is completed, appeal the decision or any condition imposed by the council or the Minister or appeal both the decision and any condition to the Municipal Board by filing with the clerk of the municipality or the Minister a notice of appeal setting out the reasons for the appeal, accompanied by the fee prescribed under the Ontario Municipal Board Act. 1994, c. 23, s. 32; 1996, c. 4, s. 29 (6). Notice of decision (17) If the council or the Minister gives or refuses to give a provisional consent, the council or the Minister shall ensure that written notice of it is given within 15 days, containing the information prescribed to, (a) the applicant; (b) each person or public body that made a written request to be notified of the decision or conditions; (c) REPEALED: 1996, c. 4, s. 29 (4). (d) the Minister, with respect to a decision by a council to give a provisional consent, if the Minister has notified the council that he or she wishes to receive a copy of all decisions made to give a provisional consent; and (e) any other person or public body prescribed. 1994, c. 23, s. 32; 1996, c. 4, s. 29 (4).
237 Appeal (27) Any person or public body may, not later than 20 days after the giving of notice under subsection (24) is completed, appeal any of the changed conditions imposed by the council or the Minister by filing with the clerk of the municipality or the Minister a notice of appeal setting out the reasons for the appeal, accompanied by the fee prescribed under the Ontario Municipal Board Act. 1994, c. 23, s. 32; 1996, c. 4, s. 29 (10).
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Under subsection 4238 the Minister may exclude any board, commission, agency or official of the Province of Ontario from the definition of “public body” set out in subsection (1) in respect of the provisions referred to in subsection (2).
Section 1.1 are the purposes of the Planning Act.
(a) to promote sustainable economic development239 in a healthy natural environment within the policy and by the means provided under this Act; (b) to provide for a land use planning system led by provincial policy240; (c) to integrate matters of provincial interest241 in provincial and municipal planning decisions; (d) to provide for planning processes that are fair by making them open, accessible, timely and efficient; (e) to encourage co-operation and co-ordination among various interests242; (f) to recognize the decision-making authority and accountability of municipal councils in planning. 1994, c. 23, s. 4.
Part I of the Act is for Provincial Administration of the Provincial Interests, which are restricted under section 109 of the Constitution and are "subject to any Trusts existing in respect thereof, and to any Interest other than that of the Province in the
238 Exclusion (4) The Minister may by regulation exclude any board, commission, agency or official of the Province of Ontario from the definition of “public body” set out in subsection (1) in respect of the provisions referred to in subsection (2). 1996, c. 4, s. 1 (4).
239 “economic development services” means, in respect of a municipality, the promotion of the municipality by the municipality for any purpose by the collection and dissemination of information and the acquisition, development and disposal of sites by the municipality for industrial, commercial and institutional uses;
240 Property in Lands, Mines, etc. 109. All Lands, Mines, Minerals, and Royalties belonging to the several Provinces of Canada, Nova Scotia, and New Brunswick at the Union, and all Sums then due or payable for such Lands, Mines, Minerals, or Royalties, shall belong to the several Provinces of Ontario, Quebec, Nova Scotia, and New Brunswick in which the same are situate or arise, subject to any Trusts existing in respect thereof, and to any Interest other than that of the Province in the same.
241 Property in Lands, Mines, etc. 109. All Lands, Mines, Minerals, and Royalties belonging to the several Provinces of Canada, Nova Scotia, and New Brunswick at the Union, and all Sums then due or payable for such Lands, Mines, Minerals, or Royalties, shall belong to the several Provinces of Ontario, Quebec, Nova Scotia, and New Brunswick in which the same are situate or arise, subject to any Trusts existing in respect thereof, and to any Interest other than that of the Province in the same.
242 INTEREST (Black’s Law Dictionary, 9th Edition, 2009, p. 885) – 1. The object of any human desire; especially advantage or profit of a financial nature. 2. A legal share in something; all or part of a legal or equitable claim to or right in property
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same." As there has been some confusion in regards to section 109, this includes every person's private trusts and/or interests243.
2. The Minister, the council of a municipality, a local board, a planning board and the Municipal Board, in carrying out their responsibilities under this Act, shall have regard to, among other matters, matters of provincial interest244 such as, (a) the protection of ecological systems, including natural areas, features and functions245 (b) the protection of the agricultural resources246 of 247 the Province; (c) the conservation and management of natural resources and the mineral resource base248; (d) the conservation of features of significant architectural, cultural, historical, archaeological or scientific interest249;
243 56. All lands, mines, minerals and royalties vested in Her Majesty in the Provinces of Upper Canada, Lower Canada, Nova Scotia, New Brunswick and Prince Edward Island, for the use of such Provinces, shall belong to the Local Government of the territory in which the same are so situate; subject to any trusts that may exist in respect to any of such lands or to any interest of other persons in respect of the same. 1864 - Quebec Conference The Seventy-Two Resolutions [authenticated October 29, 1864]
244 Property in Lands, Mines, etc. 109. All Lands, Mines, Minerals, and Royalties belonging to the several Provinces of Canada, Nova Scotia, and New Brunswick at the Union, and all Sums then due or payable for such Lands, Mines, Minerals, or Royalties, shall belong to the several Provinces of Ontario, Quebec, Nova Scotia, and New Brunswick in which the same are situate or arise, subject to any Trusts existing in respect thereof, and to any Interest other than that of the Province in the same.(57)
245 Property in Lands, Mines, etc. 109. All Lands, Mines, Minerals, and Royalties belonging to the several Provinces of Canada, Nova Scotia, and New Brunswick at the Union, and all Sums then due or payable for such Lands, Mines, Minerals, or Royalties, shall belong to the several Provinces of Ontario, Quebec, Nova Scotia, and New Brunswick in which the same are situate or arise, subject to any Trusts existing in respect thereof, and to any Interest other than that of the Province in the same.(57) (57) Manitoba, Alberta and Saskatchewan were placed in the same position as the original provinces by the Constitution Act, 1930, 20-21 Geo. V, c. 26 (U.K.). These matters were dealt with in respect of British Columbia by the British Columbia Terms of Union and also in part by the Constitution Act, 1930. Newfoundland was also placed in the same position by the Newfoundland Act, 12-13 Geo. V1, c. 22 (U.K.). With respect to Prince Edward Island, see the Schedule to the Prince Edward Island Terms of Union. Plus - Conservation Land Act.
246 OMAFRA-U of G Partnership Supported Animal Research Facilities The University of Guelph has many facilities available for housing animals. Please view each facility to find out more about the facility and the type of animals they care for: Alfred Campus/ Campus D'Alfred (organic dairy), Alma Aquaculture, Arkell Equine, Arkell Swine, Arkell Poultry Campus Animal Facilities Isolation Unit, Elora Beef, Elora Dairy, Kemptville Campus, New Liskeard Agriculture, Ponsonby General Animal Facility, Ponsonby Dairy, Ponsonby Sheep
247 OF – 1. Belonging to. DK Dictionary, 2002, p. 200 BELONG (Black’s Law Dictionary, 9th Edition, 2009, p. 175) – 1. To be the property of a person or thing. 2. To be connected with as a member. BELONGINGS (Black’s Law Dictionary, 9th Edition, 2009, p. 175) – 1. Personal Property; EFFECTS – see personal property under property. 2. All property, including realty.
248 Reservations in the Letters Patent regarding Mines, Minerals, Crown/Public Lands and Land Use Conditions, Timber rights reserved, nav. water ways, sand and gravel, etc.
249 Mun Act - 11. 3. 5 Culture, parks, recreation and heritage - Conservation Land Act = owned by municipality/public.
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(e) the supply, efficient use and conservation of energy and water250; (f) the adequate provision and efficient use of communication, transportation, sewage and water services and waste management systems251; (g) the minimization of waste252;
Heritage Act - Purchase or lease by-laws 36. (1) The council of a municipality may pass by-laws providing for acquiring, by purchase, lease or otherwise, any property or part thereof designated under this Part, including any interest therein, for the use or purposes of this Part and for disposing of such property, or any interest therein, by sale, lease or otherwise, when no longer so required, upon such terms and conditions as the council considers necessary for the purposes of this Part. R.S.O. 1990, c. O.18, s. 36 (1). Expropriating by-law (2) Subject to the Expropriations Act, the council of every municipality may pass by-laws providing for the expropriation of any property designated under this Part and required for the purposes of this Part and may sell, lease or otherwise dispose of the property, when no longer so required, upon such terms and conditions as the council considers necessary for the purposes of this Part. R.S.O. 1990, c. O.18, s. 36 (2). Delegation (3) The council of a municipality that forms part of an upper-tier municipality may delegate its power under this Part to the council of the upper-tier municipality. 2002, c. 17, Sched. F, Table. Easements 37. (1) Despite subsection 36 (1), after consultation with its municipal heritage committee, if one is established, the council of a municipality may pass by-laws providing for the entering into of easements or covenants with owners of real property or interests in real property, for the conservation of property of cultural heritage value or interest. 2002, c. 18, Sched. F, s. 2 (19). Idem (2) Any easement or covenant entered into by a council of a municipality may be registered, against the real property affected, in the proper land registry office. R.S.O. 1990, c. O.18, s. 37 (2). Idem (3) Where an easement or covenant is registered against real property under subsection (2), such easement or covenant shall run with the real property and the council of the municipality may enforce such easement or covenant, whether positive or negative in nature, against the owner or any subsequent owners of the real property, and the council of the municipality may enforce such easement or covenant even where it owns no other land which would be accommodated or benefited by such easement or covenant. R.S.O. 1990, c. O.18, s. 37 (3). Assignment (4) Any easement or covenant entered into by the council of a municipality under subsection (2) may be assigned to any person and such easement or covenant shall continue to run with the real property and the assignee may enforce the easement or covenant as if it were the council of the municipality and it owned no other land which would be accommodated or benefited by such easement or covenant. R.S.O. 1990, c. O.18, s. 37 (4). Conflict (5) Where there is a conflict between an easement or covenant entered into by a council of a municipality under subsection (1) and section 33 or 34, the easement or covenant shall prevail. R.S.O. 1990, c. O.18, s. 37 (5). Inspection 38. (1) For the purpose of carrying out this Part, any person authorized by the council of a municipality in writing may, upon producing proper identification, inspect at any reasonable time property designated or property proposed to be designated under this Part where a notice of intention to designate has been served and published under subsection 29 (3). Obstruction of investigator (2) No person shall obstruct a person authorized to make an investigation under this section or conceal or destroy anything relevant to the subject-matter of the investigation. R.S.O. 1990, c. O.18, s. 38. Grants and loans 39. (1) The council of a municipality may pass by-laws providing for the making of a grant or loan to the owner of a property designated under this Part for the purpose of paying for the whole or any part of the cost of alteration of such designated property on such terms and conditions as the council may prescribe. R.S.O. 1990, c. O.18, s. 39 (1). Loan is lien or charge on land (2) The amount of any loan made under a by-law passed under subsection (1), together with interest at a rate to be determined by the council, may be added by the clerk of the municipality to the collector’s roll and collected in like manner as municipal taxes over a period fixed by the council, not exceeding five years, and such amount and interest shall, until payment thereof, be a lien or charge upon the land in respect of which the loan was made. R.S.O. 1990, c. O.18, s. 39 (2). Non-application of s. 106 of Municipal Act, 2001 (3) Section 106 of the Municipal Act, 2001 does not apply to a grant or loan made under subsection (1). 2009, c. 33, Sched. 11, s. 6 (14).
250 “municipal property asset” means an asset of the municipality that is land, equipment or other goods. O. Reg. 599/06, s. 14 (2). “economic development services” means, in respect of a municipality, the promotion of the municipality by the municipality for any purpose by the collection and dissemination of information and the acquisition, development and disposal of sites by the municipality for industrial, commercial and institutional uses;
251 Mun Act - 11. 3.
252 Mun Act - 11. 3. 3 Waste management
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(h) the orderly development of safe and healthy communities253 (h.1) the accessibility for persons with disabilities to all facilities, services and matters to which this Act applies254 ; (i) the adequate provision and distribution of educational, health, social, cultural and recreational facilities255; (j) the adequate provision of a full range of housing, including affordable housing256; (k) the adequate provision of employment opportunities257; (l) the protection of the financial and economic well-being of the Province and its municipalities258; (m) the co-ordination of planning259 activities of public bodies; (n) the resolution of planning conflicts involving public260 and private interests261; (o) the protection of public health and safety262;
253 "Social Housing Renovation and Retrofit Program (SHRRP), Program Guidelines, June 2009", P. 1
254 "Social Housing Renovation and Retrofit Program (SHRRP), Program Guidelines, June 2009", P. 1
255 Mun Act - 11. 3. 5 Culture, parks, recreation and heritage - Heritage Act sections 36 + 37
256 Funding under the AHP Extension (2009) may be combined in the same project but cannot be combined in the same unit. For example, an existing seniors’ social housing project may have some existing units on the site that are in need of repair/renovation under SHRRP. AHP funding could be applied to the construction of new affordable housing units in the same building, subject to ministry approval, which may include a ministerial consent or Transfer Orders under the SHRA, if required. Federal RRAP-D may be used in combination with SHRRP funding (consistent with the guidelines) for the repair and retrofit of existing social housing stock. SMs and proponents should consult with CMHC’s RRAP-D program to confirm eligibility. "Social Housing Renovation and Retrofit Program (SHRRP), Program Guidelines, June 2009", P. 14.
257 ECONOMIC DEVELOPMENT SERVICES - means, in respect of a municipality, the promotion of the municipality by the municipality for any purpose by the collection and dissemination of information and the acquisition, development and disposal of sites by the municipality for industrial, commercial and institutional uses. – Municipal Act, Section 1
258 Property in Lands, Mines, etc. 109. All Lands, Mines, Minerals, and Royalties belonging to the several Provinces of Canada, Nova Scotia, and New Brunswick at the Union, and all Sums then due or payable for such Lands, Mines, Minerals, or Royalties, shall belong to the several Provinces of Ontario, Quebec, Nova Scotia, and New Brunswick in which the same are situate or arise, subject to any Trusts existing in respect thereof, and to any Interest other than that of the Province in the same.
259 PART IV COMMUNITY IMPROVEMENT Community improvement project area 28. (1) In this section, “community improvement” means the planning or replanning…
260 PUBLIC INTEREST (Black’s Law Dictionary, 9th Edition, 2009, p. 1337) – 1. The general welfare of the public that warrants recognition and protection. 2. Something in which the public as a whole has a stake; esp., an interest that justifies governmental regulation. PUBLIC PROPERTY (Black’s Law Dictionary, 9th Edition, 2009, p. 1337) – State or community owned property not restricted to any one individual’s use or possession.
261 INTEREST (Black’s Law Dictionary, 9th Edition, 2009, p. 885) – 1. The object of any human desire; especially advantage or profit of a financial nature. 2. A legal share in something; all or part of a legal or equitable claim to or right in property
262 Mun Act - 11. 3
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(p) the appropriate location of growth and development263; (q) the promotion of development that is designed to be sustainable, to support public transit and to be oriented to pedestrians264.
Section 3265 of the Planning Act incorporates the Provincial Interests by means of the Provincial Policy Statement. Subsection 4266 of section 3 expresses that municipal corporations that receive notice of the PPS shall give notice to the local boards of the corporation that may have an interest involving provincial interests. Subsection 5267 expresses that all municipal corporations, local board, planning boards, ministries of the Crown, government agencies, including the OMB must adhere to the PPS during the planning process. Subsection 6268 states that all
263 “municipal property asset” means an asset of the municipality that is land, equipment or other goods. O. Reg. 599/06, s. 14 (2). “economic development services” means, in respect of a municipality, the promotion of the municipality by the municipality for any purpose by the collection and dissemination of information and the acquisition, development and disposal of sites by the municipality for industrial, commercial and institutional uses;
264 By-laws re: matters within spheres of jurisdiction (3) A lower-tier municipality and an upper-tier municipality may pass by-laws, subject to the rules set out in subsection (4), respecting matters within the following spheres of jurisdiction: 1. Highways, including parking and traffic on highways. 2. Transportation systems, other than highways. 3. Waste management. 4. Public utilities. 5. Culture, parks, recreation and heritage. 6. Drainage and flood control, except storm sewers. 7. Structures, including fences and signs. 8. Parking, except on highways. 9. Animals. 10. Economic development services. 11. Business licensing. 2006, c. 32, Sched. A, s. 8.
265 Policy statements 3. (1) The Minister, or the Minister together with any other minister of the Crown, may from time to time issue policy statements that have been approved by the Lieutenant Governor in Council on matters relating to municipal planning that in the opinion of the Minister are of provincial interest. R.S.O. 1990, c. P.13, s. 3 (1).
266 Idem (4) Each municipality that receives notice of a policy statement under subsection (3) shall in turn give notice of the statement to each local board of the municipality that it considers has an interest in the statement. R.S.O. 1990, c. P.13, s. 3 (4).
267 (5) A decision of the council of a municipality, a local board, a planning board, a minister of the Crown and a ministry, board, commission or agency of the government, including the Municipal Board, in respect of the exercise of any authority that affects a planning matter, (a) shall be consistent with the policy statements issued under subsection (1) that are in effect on the date of the decision; and (b) shall conform with the provincial plans that are in effect on that date, or shall not conflict with them, as the case may be. 2006, c. 23, s. 5.
268 Same (6) Comments, submissions or advice affecting a planning matter that are provided by the council of a municipality, a local board, a planning board, a minister or ministry, board, commission or agency of the government, (a) shall be consistent with the policy statements issued under subsection (1) that are in effect on the date the comments, submissions or advice are provided; and (b) shall conform with the provincial plans that are in effect on that date, or shall not conflict with them, as the case may be. 2006, c. 23, s. 5.
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plans must conform with the PPS and subsection 10269 mandates that Minister will, every 5 years, review the PPS.
Sections 4 and 5 involve delegation of the Ministers powers, "other than the authority to approve official plans or the authority to exempt from approval plans as official plans or amendments to official plans, to a committee of council or to an appointed officer identified in the by-law either by name or position occupied and such committee or officer"270.
269 Review (10) The Minister shall, at least every five years from the date that a policy statement is issued under subsection (1), ensure that a review of the policy statement is undertaken for the purpose of determining the need for a revision of the policy statement. 1994, c. 23, s. 6 (3).
270 Delegation of Minister’s powers 4. (1) The Minister, on the request of the council of any municipality, may, by order, delegate to the council any of the Minister’s authority under this Act, other than the authority to approve or the authority to exempt from approval the official plan or amendments to the official plan of the municipality of which it is the council and, where the Minister has delegated any such authority, the council has, in lieu of the Minister, all the powers and rights of the Minister in respect thereof and the council shall be responsible for all matters pertaining thereto, including, without limiting the generality of the foregoing, the referral of any matter to the Municipal Board. R.S.O. 1990, c. P.13, s. 4 (1); 1996, c. 4, s. 4 (1); 1999, c. 12, Sched. M, s. 21; 2006, c. 23, s. 6. Same (2) The Minister, on the request of the planning board of any planning area in a territorial district, may, by order, delegate to the planning board any of the Minister’s authority under this Act, other than the authority to approve or the authority to exempt from approval an official plan or amendments to an official plan, and where the Minister has delegated any such authority the planning board has, in lieu of the Minister, all the powers and rights of the Minister in respect thereof and the planning board shall be responsible for all matters pertaining thereto, including, without limiting the generality of the foregoing, the referral of any matter to the Municipal Board. R.S.O. 1990, c. P.13, s. 4 (2); 1996, c. 4, s. 4 (2). Delegation where no request is made (2.1) The Minister may, after the prescribed notice is given, by order delegate to the council of an upper-tier municipality or a single-tier municipality any of the Minister’s authority described in subsection (1) if the municipality has an official plan. 2002, c. 17, Sched. B, s. 2. Delegation to planning board (2.2) The Minister may, after the prescribed notice is given, by order delegate to a planning board any of the Minister’s authority described in subsection (2) if the planning board has an official plan. 1996, c. 4, s. 4 (3). (3) REPEALED: 1994, c. 23, s. 7. Conditions (4) A delegation made by the Minister under this section may be subject to such conditions as the Minister may by order provide. 1996, c. 4, s. 4 (4). Withdrawal of delegation of powers (5) The Minister may by order, accompanied by a written explanation therefor, withdraw any delegation made under this section and, without limiting the generality of the foregoing, such withdrawal may be either in respect of one or more applications for approval specified in the order or in respect of any or all applications for approval made subsequent to the withdrawal of the delegation, and immediately following any such withdrawal the council or the planning board, as the case may be, shall forward to the Minister all papers, plans, documents and other material in the possession of the municipal corporation or the planning board that relate to any matter in respect of which the authority was withdrawn and of which a final disposition was not made by the council or the planning board prior to such withdrawal. R.S.O. 1990, c. P.13, s. 4 (5); 1993, c. 26, s. 49 (4); 1996, c. 4, s. 4 (5). Further delegation of powers 5. (1) Where the Minister has delegated any authority to a council under section 4, such council may, in turn, by by-law, and subject to such conditions as may have been imposed by the Minister, delegate any of such authority, other than the authority to approve official plans or the authority to exempt from approval plans as official plans or amendments to official plans, to a committee of council or to an appointed officer identified in the by-law either by name or position occupied and such committee or officer, as the case may be, has, in lieu of the Minister, all the powers and rights of the Minister in respect of such delegated authority and shall be responsible for all matters pertaining thereto including the referral of any matter to the Municipal Board. R.S.O. 1990, c. P.13, s. 5 (1); 1996, c. 4, s. 5 (1).
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Section 6 expresses that the Minister must consult with any ministry and/or municipal corporation regarding any "carrying out or authorizing any undertaking that the ministry considers will directly affect any municipal corporation and have regard for, the established planning policies of the municipal corporation"271.
Section 7272 involves grants from the province to assist municipal corporations and their boards for the acquisition273 of property in fulfilling their planning obligations.
Part II, Sections 8 through to 14.7 involve planning boards, their incorporation, the OMB appeals process, etc. 14.7 restricts the Counties from implementing official plans unless the criteria in Section 17 have been met. Part II continues to section 16 which involves Official Plans.
Section 16274 is to be the goals, objectives and policies of the municipal corporation to obtain its obligations under the Municipal Act involving the assets of the
Limitation (2) Despite subsection (1), a council may not delegate the authority to approve or the authority to exempt from approval amendments to official plans without the prior written approval of the Minister, which approval may be subject to such further conditions as the Minister considers appropriate. R.S.O. 1990, c. P.13, s. 5 (2); 1996, c. 4, s. 5 (2). Further delegation of powers (3) In addition to the authority of a council to, in turn, delegate any authority under subsection (1), where the Minister has delegated to a council his or her authority for the giving of consents under section 53270, such council may, in turn, by by-law, and subject to such conditions as may have been imposed by the Minister, delegate the authority for the giving of consents to a committee of adjustment constituted under section 44. Conditions (4) A delegation made by a council under subsection (1) or (3) may be subject to such conditions as the council may by by-law provide and as are not in conflict with any conditions provided by order of the Minister under section 4. Withdrawal of delegation of powers (5) A council may by by-law withdraw any delegation made under subsection (1) or (3), whereupon subsection 4 (5) applies with necessary modifications. R.S.O. 1990, c. P.13, s. 5 (3-5).
271 Consultation 6. (1) In this section, “ministry” means any ministry or secretariat of the Government of Ontario and includes a board, commission or agency of the Government. R.S.O. 1990, c. P.13, s. 6 (1); 1998, c. 15, Sched. E, s. 27 (3). Planning policies (2) A ministry, before carrying out or authorizing any undertaking that the ministry considers will directly affect any municipality, shall consult with, and have regard for, the established planning policies of the municipality. R.S.O. 1990, c. P.13, s. 6 (2).
272 Grants 7. The Minister may, out of the money appropriated therefor by the Legislature, make grants of money to assist in the performing of any duty or function of a planning nature. R.S.O. 1990, c. P.13, s. 7.
273 municipal property asset” means an asset of the municipality that is land, equipment or other goods. O. Reg. 599/06, s. 14 (2).
274 Contents of official plan 16. (1) An official plan shall contain, (a) goals, objectives and policies established primarily to manage and direct physical change and the effects on the social, economic and natural environment of the municipality or part of it, or an area that is without municipal organization; and (b) such other matters as may be prescribed. 2006, c. 23, s. 8.
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municipal corporation and its local boards. Part III continues that the official plans of the corporation must be expressed to the residents/shareholders of the municipal corporation as they are the ratepayers and will be the entities/shareholders that must finance the plans that are created by the corporations. It is only with the acceptance of the ratepayers/shareholders for the financial obligations through their property taxes that official plans may be submitted to the Minister and then the Minister has the option of accepting or denying the official plan. It is not to allow for municipal corporations to "plan/zone" for private property but for the financing for social housing, infrastructure, services supplied by the municipal corporations, etc.
Section 24 of Part III involves "Public Works". It states that when an official plan has been implemented no public works shall be undertaken and that no by-law shall be passed for any purpose that does not conform with the official plan. Subsection 4 of 24 states that if a by-law, under section 34 (zoning), has been passed the by-law shall be deemed to be in conformity with the official plan, except if the by-law is passed during the process of amending the official plan under subsections 2 and 3. This is to ensure "legal non-conforming" property of the municipality is in conformity with the official plan. “Acquisition and disposition of non-conforming lands: 34. (8)".
Public works and by-laws to conform with plan 24. (1) Despite any other general or special Act, where an official plan is in effect, no public work shall be undertaken and, except as provided in subsections (2) and (4), no by-law shall be passed for any purpose that does not conform therewith. R.S.O. 1990, c. P.13, s. 24 (1); 1999, c. 12, Sched. M, s. 24. Pending amendments (2) If a council or a planning board has adopted an amendment to an official plan, the council of any municipality or the planning board of any planning area to which the plan or any part of the plan applies may, before the amendment to the official plan comes into effect, pass a by-law that does not conform with the official plan but will conform with it if the amendment comes into effect. 2006, c. 23, s. 12. Same (2.1) A by-law referred to in subsection (2), (a) shall be conclusively deemed to have conformed with the official plan on and after the day the by-law was passed, if the amendment to the official plan comes into effect; and (b) is of no force and effect, if the amendment to the official plan does not come into effect. 2006, c. 23, s. 12.
Same (2) An official plan may contain, (a) a description of the measures and procedures proposed to attain the objectives of the plan; (b) a description of the measures and procedures for informing and obtaining the views of the public in respect of a proposed amendment to the official plan or proposed revision of the plan or in respect of a proposed zoning by-law; and (c) such other matters as may be prescribed. 2006, c. 23, s. 8.
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Preliminary steps that may be taken where proposed public work would not conform with official plan (3) Despite subsections (1) and (2), the council of a municipality may take into consideration the undertaking of a public work that does not conform275 with the official plan and for that purpose the council may apply for any approval that may be required for the work, carry out any investigations, obtain any reports or take other preliminary steps incidental to and reasonably necessary for the undertaking of the work, but nothing in this subsection authorizes the actual undertaking of any public work that does not conform with an official plan. R.S.O. 1990, c. P.13, s. 24 (3). Deemed conformity (4) If a by-law is passed under section 34276 by the council of a municipality or a planning board in a planning area in which an official plan is in effect and, within the time limited for appeal no appeal is taken or an appeal is taken and the appeal is withdrawn or dismissed or the by-law is amended by the Municipal Board or as directed by the Board, the by-law shall be conclusively deemed to be in conformity with the official plan, except, if the by-law is passed in the circumstances mentioned in subsection (2), the by-law shall be conclusively deemed to be in conformity with the official plan on and after the day the by-law was passed, if the amendment to the official plan comes into effect. 1994, c. 23, s. 16 (2); 1996, c. 4, s. 14 (2).
Section 25277 of the Planning Act states if there is an official plan a municipality must acquire land to place the property/asset "within the municipality" or make the property belong to the municipal corporation prior to zoning under section 34.
Acquisition of lands in accordance with provisions of plan 25. (1) If there is an official plan in effect in a municipality that includes provisions relating to the acquisition of land, which provisions have come into effect after the 28th day of June, 1974, the council may, in accordance with such
275 “Acquisition and disposition of non-conforming lands: 34. (8) The council may acquire any land, building or structure used or erected for a purpose that does not conform with a by-law passed under this section and any vacant land having a frontage or depth less than the minimum established for the erection of a building or structure in the defined area in which such land is situate, and the council may dispose of any of such land, building or structure or may exchange any of such land for other land within the municipality. R.S.O. 1990, c. P.13, s. 34 (8); 1996, c. 4, s. 20 (4).”
276 34. (1) Zoning by-laws may be passed by the councils of local municipalities: Restricting use of land 1. For prohibiting the use of land, for or except for such purposes as may be set out in the by-law within the municipality or within any defined area or areas or abutting on any defined highway or part of a highway.
277 Acquisition of lands in accordance with provisions of plan, 25. (1) If there is an official plan in effect in a municipality that includes provisions relating to the acquisition of land, which provisions have come into effect after the 28th day of June, 1974, the council may, in accordance with such provisions, acquire and hold land within the municipality for the purpose of developing any feature of the official plan, and any land so acquired or held may be sold, leased or otherwise disposed of when no longer required. R.S.O. 1990, c. P.13, s. 25 (1); 1994, c. 23, s. 17; 1996, c. 4, s. 15. Contribution towards cost, (2) Any municipality may contribute towards the cost of acquiring land under this section. R.S.O. 1990, c. P.13, s. 25 (2).
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provisions, acquire and hold land within the municipality for the purpose of developing278 any feature279 of the official plan, and any land so acquired or held may be sold, leased or otherwise disposed of when no longer required. R.S.O. 1990, c. P.13, s. 25 (1); 1994, c. 23, s. 17; 1996, c. 4, s. 15.
Section 25 is section 15 of the 1946 Planning Act which states:
15. – (1) For the purpose of developing any feature of the official plan a municipality, with the approval of the Minister, may at any time and from time to time,-- (a) acquire land within the municipality; (b) hold land heretofore or hereafter acquired within the municipality; or (c) sell, lease or otherwise dispose of land so acquired or held when no longer required. (2) For the purpose of developing any feature of the official plan a designated municipality, with the approval of the Minister, may exercise any of the powers mentioned in subsection 1 in respect of land within the planning acre, and in such case any municipality within the planning area may contribute to the cost of acquiring such land for such purpose
Under section 25 (section 15 of the 1946 Act), it states to develop any feature of an official plan a municipality may acquire and hold land. This section is granting the municipality the permission to obtain the land, a public asset280, for development. The definition of develop and feature are:
"DEVELOP — vb 1. to come or bring to a later or more advanced or expanded stage; grow or cause to grow gradually 7. ( tr ) to improve the value or change the use of (land), as by building281
FEATURE - noun 1. a prominent or conspicuous part or characteristic: Tall buildings were a new feature on the skyline."282
278 DEVELOP — vb 1. to come or bring to a later or more advanced or expanded stage; grow or cause to grow gradually ; 7. ( tr ) to improve the value or change the use of (land), as by building ; http://dictionary.reference.com/browse/develop
279 FEATURE - noun - 1. a prominent or conspicuous part or characteristic: Tall buildings were a new feature on the skyline. http://dictionary.reference.com/browse/feature
280 Section 10 and 11, subsection 2 (By-laws), part 4 – Public assets of the municipality acquired for the purpose of exercising its authority under this or any other Act. Municipal Act.
281 DEVELOP — vb 1. to come or bring to a later or more advanced or expanded stage; grow or cause to grow gradually ; 7. ( tr ) to improve the value or change the use of (land), as by building ; http://dictionary.reference.com/browse/develop
282 FEATURE - noun 1. a prominent or conspicuous part or characteristic: Tall buildings were a new feature on the skyline http://dictionary.reference.com/browse/develop
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Under section 25, to grow or to change the use of land and its value and to give any part or characteristic life in regards to a municipality's official plan, the municipality, with the approval of the Minister, may acquire by purchase, lease or expropriation the land. This is the criteria of implementing an official plan. If a municipality does not follow this process it cannot designate or zone283 the land because the ownership of land, and the land title from the previous owner, has not been transferred and registered under the Registry Act or The Land Titles Act. Without registry there can be no designation because there has been no dedication284. To develop any feature of an official plan is to implement community improvement, after all it is to improve the value or to change the use of the land, meaning that the municipality is:
“planning or replanning, design or redesign resubdivision, clearance, development or redevelopment, construction, reconstruction, rehabilitation, energy efficiency, and provides for residential, commercial, industrial, public, recreational, institutional, religious, charitable or other uses, buildings, structures, works, improvements or facilities, or spaces therefor, as may be appropriate or necessary.285
Section 28 (2)286 states that where there is an official plan in effect that pertains to the community improvement the council may designate the whole or any part of an area covered under the official plan as a community development project area. Section 28 (3)287 states when a by-law has been passed under subsection 2 the municipal corporation may acquire the land within the community improvement area for the clearing, grading and/or prepare the land for community improvement and that it may hold the land acquired before or after the passing of the by-law.
283 ZONE, ZONING, ZONES - verb tr.v. zoned, zon·ing, zones. 1. To divide into zones. 2. To designate or mark off into zones. 3. To surround or encircle with or as if with a belt or girdle. http://www.thefreedictionary.com/zone verb [with object] 1. designate (a specific area) for use or development as a particular zone in planning: the land is zoned for housing . http://oxforddictionaries.com/definition/english/zone
284 City of Flagstaff, a Body Politic, Appellant, v. George Babbitt, Jr., Appellee. Sup. Court. Aug. 6, 1968. The Court of Appeals, Stevens, J., held that actions of subdivider in testifying that he did not intend to dedicate land designated in subdivision plat as park to public, in failing to include park in dedicatory working on record plat, in establishing and grading streets and replatting lots in portion of area designated as park, and in executing easement for sewer line to city across park and paying taxes on such property were inconsistent with intent to dedicate park to public but rather were consistent with intent to retain property as private property of subdivider and they rebutted presumption of dedication arising from plat. Judgment affirmed.
285 Section 28 – Planning Act. 286 Designation of community improvement project area (2) Where there is an official plan in effect in a local municipality or in a prescribed upper-tier municipality that contains provisions relating to community improvement in the municipality, the council may, by by-law, designate the whole or any part of an area covered by such an official plan as a community improvement project area. R.S.O. 1990, c. P.13, s. 28 (2); 2006, c. 23, s. 14 (3).
287 Acquisition and clearance of land (3) When a by-law has been passed under subsection (2), the municipality may, (a) acquire land within the community improvement project area with the approval of the Minister if the land is acquired before a community improvement plan mentioned in subsection (4) comes into effect and without the approval of the Minister if the land is acquired after the community improvement plan comes into effect; (b) hold land acquired before or after the passing of the by-law within the community improvement project area; and (c) clear, grade or otherwise prepare the land for community improvement. R.S.O. 1990, c. P.13, s. 28 (3); 2001, c. 17, s. 7 (3).
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Section 28 (6)288 expresses that where a community improvement plan has come into effect, after acquiring the land/property, the municipality may construct, repair, rehabilitate buildings or the land (brownfields), in conformity with the community improvement plan. It also expresses that the municipal corporation may sell, lease or dispose of the buildings and/or land and that the sell, lease or disposal of the buildings/land can be to any person or government authority for use in conformity of the community improvement plan.
The definition of “community improvement”289 includes:
“planning or replanning, design or redesign resubdivision, clearance, development or redevelopment, construction, reconstruction, rehabilitation, energy efficiency, and provides for residential, commercial, industrial, public, recreational, institutional, religious, charitable or other uses, buildings, structures, works, improvements or facilities, or spaces therefor, as may be appropriate or necessary. (“Affordable housing 28. (1.1) Without limiting the generality of the definition of “community improvement” in subsection (1), for greater certainty, it includes the provision of affordable housing. 2006, c. 23, s. 14 (2).”)”
“Community improvement plan” means any "planning or replanning", which is happening when the planning department creates "municipal plans" and/or a plan for the community improvement of a community improvement project area; and “community improvement project area” means a municipal corporation or an area within a municipality, the community improvement (planning or replanning) of which, in the opinion of the council, is desirable because of age, dilapidation, overcrowding, faulty arrangement, unsuitability of buildings or for any other environmental, social or community economic development reason. There is also the point that for environmental, social or community economic development there must be acquisition of the land/property, by the municipal corporation, for implementation. This follows with the intent of the original Planning Act of 1946, to remove the slums and to create affordable housing for either purchase or for the municipality to have low-income rentals.
288 Powers of council re land (6) For the purpose of carrying out a community improvement plan that has come into effect, the municipality may, (a) construct, repair, rehabilitate or improve buildings on land acquired or held by it in the community improvement project area in conformity with the community improvement plan, and sell, lease or otherwise dispose of any such buildings and the land appurtenant thereto; (b) sell, lease or otherwise dispose of any land acquired or held by it in the community improvement project area to any person or governmental authority for use in conformity with the community improvement plan. R.S.O. 1990, c. P.13, s. 28 (6); 2001, c. 17, s. 7 (6).
289 PART IV, COMMUNITY IMPROVEMENT, COMMUNITY IMPROVEMENT PROJECT AREA 28. (1) In this section, “community improvement” means the planning or replanning, design or redesign, resubdivision, clearance, development or redevelopment, construction, reconstruction and rehabilitation, improvement of energy efficiency, or any of them, of a community improvement project area, and the provision of such residential, commercial, industrial, public, recreational, institutional, religious, charitable or other uses, buildings, structures, works, improvements or facilities, or spaces therefor, as may be appropriate or necessary;
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Section 28 (7)290 states that the municipal corporation may make grants or loans for the purpose of carrying out the municipal corporations improvement plan. These grants or loans can be made to registered owners, assessed owners, tenants of lands and buildings within the corporations improvement project area and to any person that an owner or tenant has assigned rights to for receiving the grant or loan to pay part or all of the eligible costs of the community improvement plan; entities that provide a public service and/or future owners that purchase, lease or are the recipients of the disposed properties that had been previously acquired by the municipal corporation. ”Eligible Costs291 ” include environmental site assessments, environmental remediation, development, redevelopment, construction, and reconstruction of lands and buildings for rehabilitation purposes or for the provision of energy efficient uses, buildings, structures, works, improvements or facilities.
Section 28 (7.2)292 allows for grants and loans between upper and lower tier municipal corporations. (7.3)293 limits the amount of grants or loans and brings in section 365.1294 of the Municipal Act in regards to tax relief for an "eligible" property owner, who makes application, when property taxes are considered an “overburden” determined by the council.
Section 28 (10)295 is the requirements for conditions of sale. This section includes section 34 (zoning by-laws) of the Planning act and explains that nothing that
290 Grants or loans re eligible costs (7) For the purpose of carrying out a municipality’s community improvement plan that has come into effect, the municipality may make grants or loans, in conformity with the community improvement plan, to registered owners, assessed owners and tenants of lands and buildings within the community improvement project area, and to any person to whom such an owner or tenant has assigned the right to receive a grant or loan, to pay for the whole or any part of the eligible costs of the community improvement plan. 2006, c. 23, s. 14 (8).
291 Eligible costs (7.1) For the purposes of subsection (7), the eligible costs of a community improvement plan may include costs related to environmental site assessment, environmental remediation, development, redevelopment, construction and reconstruction of lands and buildings for rehabilitation purposes or for the provision of energy efficient uses, buildings, structures, works, improvements or facilities. 2006, c. 23, s. 14 (8).
292 Grants or loans between upper and lower-tier municipalities (7.2) The council of an upper-tier municipality may make grants or loans to the council of a lower-tier municipality and the council of a lower-tier municipality may make grants or loans to the council of the upper-tier municipality, for the purpose of carrying out a community improvement plan that has come into effect, on such terms as to security and otherwise as the council considers appropriate, but only if the official plan of the municipality making the grant or loan contains provisions relating to the making of such grants or loans. 2006, c. 23, s. 14 (8).
293 Maximum amount (7.3) The total of the grants and loans made in respect of particular lands and buildings under subsections (7) and (7.2) and the tax assistance as defined in section 365.1 of the Municipal Act, 2001 or section 333 of the City of Toronto Act, 2006, as the case may be, that is provided in respect of the lands and buildings shall not exceed the eligible cost of the community improvement plan with respect to those lands and buildings. 2006, c. 23, s. 14 (8); 2006, c. 32, Sched. C, s. 48 (3).
294 Cancellation, reduction or refund of taxes 365. (1) The council of a local municipality may, in any year, pass a by-law to provide for the cancellation, reduction or refund of taxes levied for local municipal and school purposes in the year by the council in respect of an eligible property of any person who makes an application in that year to the municipality for that relief and whose taxes are considered by the council to be unduly burdensome, as defined in the by-law. 2001, c. 25, s. 365 (1).
295 Conditions of sale, etc. (10) Until a by-law or amending by-law passed under section 34 after the adoption of the community improvement plan is in force in the community improvement project area, no land acquired, and no
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has been acquired by the municipal corporation for a community improvement in a community improvement area can be sold unless a corporate by-law is implemented and/or amended and that the purchaser, leasees or entity that received the dispossession of property from the corporation enters into an agreement with the municipal corporation covenanting the land use condition and/or zoning.
Section 28 (11)296 refers to grants and/or loans under subsection (7) and/or an agreement in regards to grants and/or loans. It also expresses that any agreement entered into under section (10) may be registered against the land and that the municipal corporation may be able to enforce the conditions on the future purchaser of the property subject to the Registry Act and/or the Land Titles Act.
Section 32297 of the Planning Act is for Community Improvement Areas and is regulations for Grants and/or Loans for repairs brings in Municipal Property Standards. Grants and Loans may be made by Municipal corporations to owners and or assessed owners of properties for repairs under the Social Housing Reform Act, the Housing Development Act, or for separate local boards that supply facilities for public services.
building constructed, by the municipality in the community improvement project area shall be sold, leased or otherwise disposed of unless the person or authority to whom it is disposed of enters into a written agreement with the municipality that the person or authority will keep and maintain the land and building and the use thereof in conformity with the community improvement plan until such a by-law or amending by-law is in force, but the municipality may, during the period of the development of the plan, lease any land or any building or part thereof in the area for any purpose, whether or not in conformity with the community improvement plan, for a term of not more than three years at any one time. R.S.O. 1990, c. P.13, s. 28 (10).
296 Registration of agreement (11) An agreement concerning a grant or loan made under subsection (7) or an agreement entered into under subsection (10), may be registered against the land to which it applies and the municipality shall be entitled to enforce the provisions thereof against any party to the agreement and, subject to the provisions of the Registry Act and the Land Titles Act, against any and all subsequent owners or tenants of the land. R.S.O. 1990, c. P.13, s. 28 (11); 2006, c. 23, s. 14 (10).
297 Grants or loans for repairs 32. (1) When a by-law under section 15.1 of the Building Code Act, 1992 is in force in a municipality, the council of the municipality may pass a by-law for providing for the making of grants or loans to the registered owners or assessed owners of lands in respect of which an order has been made under subsection 15.2 (2) of that Act to pay for the whole or any part of the cost of the repairs required to be done, or of the clearing, grading and levelling of the lands, on such terms and conditions as the council may prescribe. R.S.O. 1990, c. P.13, s. 32 (1); 1997, c. 24, s. 226 (3). Loans collected as taxes, lien on land (2) The amount of any loan made under a by-law passed under this section, together with interest at a rate to be determined by the council, may be added by the clerk of the municipality to the collector’s roll and collected in like manner as municipal taxes over a period fixed by the council, and such amount and interest shall, until payment thereof, be a lien or charge upon the land in respect of which the loan has been made. Registration of certificate (3) A certificate signed by the clerk of the municipality setting out the amount loaned to any owner under a by-law passed under this section, including the rate of interest thereon, together with a description of the land in respect of which the loan has been made, sufficient for registration, shall be registered in the proper land registry office against the land, and, upon repayment in full to the municipality of the amount loaned and interest thereon, a certificate signed by the clerk of the municipality showing such repayment shall be similarly registered, and thereupon the lien or charge upon the land in respect of which the loan was made is discharged. R.S.O. 1990, c. P.13, s. 32 (2, 3).
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This includes sections 15.1298 and 15.2 (2)299 of the Building Code. Section 15.1 to 15.8 does not apply to private property that is not part of a corporation providing a public service and is not part of municipal management or subsidies.
Section 33300 of the Planning Act should be read in conjunction with Section 99.1, section 326 of the Municipal Act and section 15.1 and section 35301 of the Building
298 Municipal property standards 15.1 (1) In sections 15.1 to 15.8 inclusive, “committee” means a property standards committee established under section 15.6; “occupant” means any person or persons over the age of 18 years in possession of the property; “owner” includes, (a) the person for the time being managing or receiving the rent of the land or premises in connection with which the word is used, whether on the person’s own account or as agent or trustee of any other person, or who would receive the rent if the land and premises were let, and (b) a lessee or occupant of the property who, under the terms of a lease, is required to repair and maintain the property in accordance with the standards for the maintenance and occupancy of property; (Note: SEE: Social Housing Reform Act, 2000, S.O. 2000, CHAPTER 27, Housing Development Act, R.S.O. 1990, Chapter H.18,) “property” means a building or structure or part of a building or structure, and includes the lands and premises appurtenant thereto and all mobile homes, mobile buildings, mobile structures, outbuildings, fences and erections thereon whether heretofore or hereafter erected, and includes vacant property; (“bien”) “repair” includes the provision of facilities, the making of additions or alterations or the taking of any other action that may be required to ensure that a property conforms with the standards established in a by-law passed under this section. (“réparation”) 1997, c. 24, s. 224 (8). Adoption of policy. (2) Where there is no official plan in effect in a municipality, the council of a municipality may, by by-law approved by the Minister, adopt a policy statement containing provisions relating to property conditions. 1997, c. 24, s. 224 (8).
299 Inspection of property without warrant, Contents of order (2) An officer who finds that a property does not conform with any of the standards prescribed in a by-law passed under section 15.1 may make an order, (a) stating the municipal address or the legal description of the property; (b) giving reasonable particulars of the repairs299 to be made or stating that the site is to be cleared of all buildings, structures, debris or refuse and left in a graded and levelled condition; (c ) indicating the time for complying with the terms and conditions of the order and giving notice that, if the repair or clearance is not carried out within that time, the municipality may carry out the repair or clearance at the owner’s expense299; and (d) indicating the final date for giving notice of appeal from the order. 1997, c. 24, s. 224 (8).
300 Demolition control area, 33. (1) In this section, “dwelling unit” means any property that is used or designed for use as a domestic establishment in which one or more persons may sleep and prepare and serve meals; “residential property” means a building that contains one or more dwelling units, but does not include subordinate or accessory buildings the use of which is incidental to the use of the main building. R.S.O. 1990, c. P.13, s. 33 (1). Establishment of demolition control area by by-law (2) When a by-law under section 15.1 of the Building Code Act, 1992 or a predecessor thereof is in force in a municipality or when a by-law prescribing standards for the maintenance and occupancy of property under any special Act is in force in a municipality, the council of the local municipality may by by-law designate any area within the municipality to which the standards of maintenance and occupancy by-law applies as an area of demolition control and thereafter no person shall demolish the whole or any part of any residential property in the area of demolition control unless the person is the holder of a demolition permit issued by the council under this section. R.S.O. 1990, c. P.13, s. 33 (2); 1997, c. 24, s. 226 (4).
301 Municipal by-laws 35. (1) This Act and the building code supersede all municipal by-laws respecting the construction or demolition of buildings. 1992, c. 23, s. 35 (1). Different treatments (2) In the event that this Act or the building code and a municipal by-law treat the same subject-matter in different ways in respect to standards for the use of a building described in section 10 or standards for the maintenance or operation of a sewage system, this Act or the building code prevails and the by-law is inoperative to the extent that it differs from this Act or the building code. 1992, c. 23, s. 35 (2); 1997, c. 30, Sched. B, s. 18 (1). Interpretation (3) For the purpose of this section, a municipal by-law includes a by-law of an upper-tier municipality and a local board as defined in the Municipal Affairs Act. 2002, c. 17, Sched. F, Table. Status of conservation authority regulations 35.1 A regulation made by a conservation authority under this Act is not a regulation within the meaning of Part III (Regulations) of the Legislation Act, 2006. 2002, c. 9, s. 52; 2006, c. 21, Sched. F, s. 136 (1).
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Code. Again this section of the Planning Act pertains to community development areas and is not applicable to private property. It must be understood that the Building Code was established not for private individuals contracting for construction of their own buildings and homes. The Building Code was established for construction where government has some form of financial input and responsibility. This was established in 1946, in conjunction with the Municipal Act and the Planning Act. It was to ensure that construction paid for by the people of Ontario and Canada met a certain standard and would be efficient, safe and durable.
"MR. G. ANDERSON (Fort William): Mr. Speaker, I would like to read an explanatory note in connection with this Bill. The purpose of the Bill is to make provision for municipalities to set up housing authorities on rather broader terms than is provided under other legislation. It provides that the members of such authority may, if council wishes, be the same as the members of the Planning Board established under the Planning Act but with additional powers. They are instructed to establish for any municipal housing project standards which shall cover all matters of health- sanitation, safety codes, green places and so on, as well as building construction codes. The Bill also provides that housing projects which are approved by The Municipal Board do not require the assent of the electors entitled to vote on money by-laws."302
In conjunction with section 24, above, section 24 and 33 is supported by section 34 (8) of the Planning Act – Zoning By-laws. Section 34 (8) expresses:
“Acquisition and disposition of non-conforming lands: 34. (8) The council may acquire any land, building or structure used or erected for a purpose that does not conform with a by-law passed under this section and any vacant land having a frontage or depth less than the minimum established for the erection of a building or structure in the defined area in which such land is situate, and the council may dispose of any of such land, building or structure or may exchange any of such land for other land within the municipality. R.S.O. 1990, c. P.13, s. 34 (8); 1996, c. 4, s. 20 (4).”
Which, in turn, leads to the “Holding” provisions in section 36303 of the Planning Act. In the aforementioned sections a municipal corporation cannot place an “H” or holding symbol on private property. Unless it has been acquired and is owned, managed or belongs to the municipal corporation or a corporation/board created by/for the municipal corporation. That being the case, a municipal corporation does not have the authority to designate/zone any private property either under an official plan or without having an official plan. Section 34 (8) and section 36 should be referred to
302 DEBATES & PROCEEDINGS OF THE 2nd. SESSION OF THE 22nd LEGISLATURE OF THE PROVINCE OF ONTARIO. 1946. Vol 4. p. 1975 Bill No.. 138, "An Act to enable Municipalities to Establish Community Planning and Housing, Authorities", Mr. Anderson.
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section 25 of the present and 1946 Planning Acts. In regards to "person" that is explained in 1946 as
"The proposal, at that time, of course, was that the whole housing development be given over to Housing Enterprises Limited, which was organized by certain investment and insurance companies…"304
And section 25 of the 1946 Act reads:
25. -- (1) Every person desiring to subdivide land into lots for the purpose of sale shall forward at least four, or as many as may be required, copies of a draft plan thereof drawn to scale together with an application for approval to the Minister and shall, unless the land is situate in unorganized territory, forward two copies of such plan, -- (4) In considering a draft plan of subdivision regard shall be had, among other matters, to the health, safety, convenience and welfare of the future inhabitants and to the following,-- (a) whether the plan conforms to the official plan and adjacent plans of subdivision, if any; (7) Upon presentation by the person desiring to subdivide the Minister may, if satisfied that the plan is in conformity with the approved draft plan, approve the plan of subdivision and thereupon the plan of subdivision may be tendered for registration.
PART IV – Subdivision Control Section 51 (17)305 is the equivalent to section 25 (2)306 of the 1946 Act, and section 57 (24) and (25)307 are the same as section 25 (4)308. Section 51 (26)309 is section 22310 of the 1946 Act. Section 51 (27)311 is section 20 of the 1946 Act.
303 Holding provision by-law, 36. (1) The council of a local municipality may, in a by-law passed under section 34, by the use of the holding symbol “H” (or “h”) in conjunction with any use designation, specify the use to which lands, buildings or structures may be put at such time in the future as the holding symbol is removed by amendment to the by-law. R.S.O. 1990, c. P.13, s. 36 (1). Condition (2) A by-law shall not contain the provisions mentioned in subsection (1) unless there is an official plan in effect in the local municipality that contains provisions relating to the use of the holding symbol mentioned in subsection (1). R.S.O. 1990, c. P.13, s. 36 (2).
304 Legislative Debates - 1949 Volume 2, Page 890
305 Contents (17) The applicant shall provide the approval authority with the prescribed information and material and as many copies as may be required by the approval authority of a draft plan of the proposed subdivision drawn to scale and showing, (a) the boundaries of the land proposed to be subdivided, certified by an Ontario land surveyor; (b) the locations, widths and names of the proposed highways within the proposed subdivision and of existing highways on which the proposed subdivision abuts; (c) on a small key plan, on a scale of not less than one centimetre to 100 metres, all of the land adjacent to the proposed subdivision that is owned by the applicant or in which the applicant has an interest, every subdivision adjacent to the proposed subdivision and the relationship of the boundaries of the land to be subdivided to the boundaries of the township lot or other original grant of which the land forms the whole or part; (d) the purpose for which the proposed lots are to be used; (e) the existing uses of all adjoining lands;
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(f) the approximate dimensions and layout of the proposed lots; (g) natural and artificial features such as buildings or other structures or installations, railways, highways, watercourses, drainage ditches, wetlands and wooded areas within or adjacent to the land proposed to be subdivided; (h) the availability and nature of domestic water supplies; (i) the nature and porosity of the soil; (j) existing contours or elevations as may be required to determine the grade of the highways and the drainage of the land proposed to be subdivided; (k) the municipal services available or to be available to the land proposed to be subdivided; and (l) the nature and extent of any restrictions affecting the land proposed to be subdivided, including restrictive covenants or easements. 1994, c. 23, s. 30; 1996, c. 4, s. 28 (3).
306 25. (2) The draft plan shall show the boundaries of the land to be subdivided, certified by an Ontario land surveyor, and shall indicate,-- (a) locations, widths and names of proposed highways; (b) every adjoining subdivision and the relationship thereto of the lands proposed to be subdivided, and where the adjoining land is not subdivided, the relationship of the boundaries of the land to be subdivided to the boundaries of the township lot or other original grant of which such land forms the whole or part; (c) the purpose for which the lots are to be used; (d) the nature of the existing uses of adjoining land; (e) the approximate dimensions and layouts of the proposed lots; (f) natural and artificial features such as buildings, railways, highways, watercourses, drainage ditches, swamps and wooded area within or adjacent to the land proposed to be subdivided; (g) the availability and nature of domestic water supplies; (h) the nature and porosity of the soil; (i) such contours or elevations as may be required to determine the grade of the highways and the drainage of the land; and (j) the municipal services available or to be available to the land proposed to be subdivided.
307 Criteria (24) In considering a draft plan of subdivision, regard shall be had, among other matters, to the health, safety, convenience, accessibility for persons with disabilities and welfare of the present and future inhabitants of the municipality and to, (a) the effect of development of the proposed subdivision on matters of provincial interest as referred to in section 2; (b) whether the proposed subdivision is premature or in the public interest; (c) whether the plan conforms to the official plan and adjacent plans of subdivision, if any; (d) the suitability of the land for the purposes for which it is to be subdivided; (e) the number, width, location and proposed grades and elevations of highways, and the adequacy of them, and the highways linking the highways in the proposed subdivision with the established highway system in the vicinity and the adequacy of them; (f) the dimensions and shapes of the proposed lots; (g) the restrictions or proposed restrictions, if any, on the land proposed to be subdivided or the buildings and structures proposed to be erected on it and the restrictions, if any, on adjoining land; (h) conservation of natural resources and flood control; (i) the adequacy of utilities and municipal services; (j) the adequacy of school sites; (k) the area of land, if any, within the proposed subdivision that, exclusive of highways, is to be conveyed or dedicated for public purposes; (l) the extent to which the plan’s design optimizes the available supply, means of supplying, efficient use and conservation of energy; and (m) the interrelationship between the design of the proposed plan of subdivision and site plan control matters relating to any development on the land, if the land is also located within a site plan control area designated under subsection 41 (2) of this Act or subsection 114 (2) of the City of Toronto Act, 2006. 1994, c. 23, s. 30; 2001, c. 32, s. 31 (2); 2006, c. 23, s. 22 (3, 4). Conditions (25) The approval authority may impose such conditions to the approval of a plan of subdivision as in the opinion of the approval authority are reasonable, having regard to the nature of the development proposed for the subdivision, including a requirement, (a) that land be dedicated or other requirements met for park or other public recreational purposes under section 51.1;
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"20. To relieve the existing emergency in housing conditions a municipality, with the approval of the Minister, may erect, maintain, manage and wind up projects for temporary housing accommodation either within or outside the municipality."
Section 51 (31)312 is section 23 (3)313 of the 1946 Act.
We are seeing that our corporate municipal elected officials/ board of directors have not been informed of the various sections that must be read in conjunction with a
(b) that such highways, including pedestrian pathways, bicycle pathways and public transit rights of way, be dedicated as the approval authority considers necessary; (b.1) that such land be dedicated for commuter parking lots, transit stations and related infrastructure for the use of the general public using highways, as the approval authority considers necessary; (c) when the proposed subdivision abuts on an existing highway, that sufficient land, other than land occupied by buildings or structures, be dedicated to provide for the widening of the highway to such width as the approval authority considers necessary; and (d) that the owner of the land proposed to be subdivided enter into one or more agreements with a municipality, or where the land is in territory without municipal organization, with any minister of the Crown in right of Ontario or planning board dealing with such matters as the approval authority may consider necessary, including the provision of municipal or other services. 1994, c. 23, s. 30; 2005, c. 26, Sched. B, s. 1; 2006, c. 23, s. 22 (5).
308 (4) In considering a draft plan of subdivision regard shall be had, among other matters, to the health, safety, convenience and welfare of the future inhabitants and to the following,-- (a) whether the plan conforms to the official plan and adjacent plans of subdivision, if any; (b) whether the subdivision is premature or necessary in the public interest; (c) the suitability of the land for the purposes for which it is being subdivided; (d) the number, width, location and proposed grades and elevations of highways, and the adequacy thereof; (e) the dimensions and shape of the lots; (f) the restrictions or proposed restrictions, if any, on the land, buildings and structures proposed to be erected thereon and the restrictions, if any, on adjoining lands; (g) conservation of natural resources and flood control; (h) the adequacy of utilities and municipal services; and (i) the area of land, if any, within the subdivision that, exclusive of highways, is to be dedicated for public purposes.
309 Agreements (26) A municipality or approval authority, or both, may enter into agreements imposed as a condition to the approval of a plan of subdivision and the agreements may be registered against the land to which it applies and the municipality or the approval authority, as the case may be, is entitled to enforce the provisions of it against the owner and, subject to the Registry Act and the Land Titles Act, any and all subsequent owners of the land. 1994, c. 23, s. 30.
310 22. A municipality, with the approval of the Minister, may enter into an agreement with any person or governmental authority undertaking a housing project to provide that certain specified uses of land in a specified area surrounding the project will be maintained for the period specified in the agreement.
311 Land outside municipalities (27) If the land proposed to be subdivided is located in territory without municipal organization, any minister of the Crown in right of Ontario or planning board may enter into agreements imposed as a condition to the approval of a plan of subdivision and the agreement may be registered against the land to which it applies and the minister or the planning board is entitled to enforce the provisions of it against the owner and, subject to the Registry Act and the Land Titles Act, any and all subsequent owners of land. 1994, c. 23, s. 30.
312 Decision (31) The approval authority may give or refuse to give approval to a draft plan of subdivision. 1994, c. 23, s. 30.
313 23. (3) When an area is designated as an urban development area it shall not be altered or dissolved without the approval of the Minister.
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number of pieces of legislation to enact by-laws and/or official plans. Section 34 of the Planning Act is “zoning by-laws”, and the implementation of zoning by-laws is done when, either the municipal corporation has ownership of the property, a public facility/government corporation has ownership or agreements have been “knowingly” and willingly entered into between the municipal corporation and the private property owner. Presently, caused by a lack of information, private property owners are being forced into entering into agreements that are beyond the ability of the municipal corporation to demand or administer. “Covenant” or conditions of these agreement are then registered against the title of the land, which affects the title. This cannot be done under the Registry Act314.
As expressed in the Midland Free Press, regarding Ontario (Attorney General) v. Rowntree Beach Assn., 1994 CanLII 7228 (ON S.C.), “If you don’t own it, you cannot plan for it.”315, as it is only the private property owner that has the authority to dedicate his property and it is only the private property owner that has the authority to designate his property for the use of the public316 if he chooses.
Receiving advice from a municipal corporate staff member or council/director about it being a mandatory requirement, to have permission, is beyond the “authority” of the municipal corporation or any of its staff and is an abrogation of the private property owner's rights, of which he should have been advised, if the council and staff at the municipal corporation are acting as agents of the Crown. It is their responsibility, as agents of the Crown, to advise a person of their “rights”.
This leads to what is termed “dedication” and who can “designate” private property. The only person (including corporations) that can designate private property is the owner of the property and that is through dedication to some other entity by
314 REGISTRY ACT. REGISTRATION AND ITS EFFECT EFFECT OF UNREGISTERED INSTRUMENTS 70. (1) After the grant from the Crown of land, and letters patent issued therefor, every instrument affecting the land or any part thereof shall be adjudged fraudulent and void against any subsequent purchaser or mortgagee for valuable consideration without actual notice, unless the instrument is registered before the registration of the instrument under which the subsequent purchaser or mortgagee claims. R.S.O. 1990, c. R.20, s. 70 (1). Exception as to certain leases, (2) This section does not extend to a lease for a term not exceeding seven years where the actual possession goes along with the lease, but it does extend to every lease for a longer term than seven years. R.S.O. 1990, c. R.20, s. 70 (2). Exception as to certain by-laws, (3) This section does not extend and shall be deemed never to have extended to, (a) a by-law passed before the 6th day of April, 1954 under section 390 of The Municipal Act, being chapter 243 of the Revised Statutes of Ontario, 1950 or a predecessor of that section; (b) a by-law passed after the 5th day of April, 1954 under section 390 of The Municipal Act, being chapter 243 of the Revised Statutes of Ontario, 1950 or under section 34 of the Planning Act or a predecessor of that section of the Planning Act; or (c) any other municipal by- law, heretofore or hereafter passed, affecting land that does not directly affect the title to land. R.S.O. 1990, c. R.20, s. 70 (3).
315 Court rulings don't support claim of open beaches. Midland Free Press, May 19, 2000. (This article is a revised and updated version of TINY'S SHORELINE -- A LEGAL HISTORY, which appeared in Issue #14 (Spring 1999) of The Tiny Cottager) Midland Free Press, May 19, 2000. p.2.
316 PUBLIC INTEREST (Black’s Law Dictionary, 9th Edition, 2009, p. 1337) – 1. The general welfare of the public that warrants recognition and protection. 2. Something in which the public as a whole has a stake; esp., an interest that justifies governmental regulation.
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grant317. This is what the province/AMO is not revealing to the municipal corporations and what it is being demanded of the private property owner who is being forced, by misinterpreted legislation, to dedicate his property through municipal plans318. This is beyond the jurisdiction of the province, AMO and/or the municipal corporations as they only have legislative jurisdiction over what belongs319 to either the province, AMO and/or the municipal corporation. The province and/or the municipal corporations, and other corporations, are implementing designations by demanding dedication by the private property owner and are doing indirectly what they legally cannot do directly, which is not legal.
“What cannot be legally done directly cannot be done indirectly. This rule is basic and, to a reasonable mind, does not need explanation. Indeed, if acts that cannot be legally done directly can be done indirectly, then all laws would be illusory.”320
If the province could, legally, implement these designations, they would, but they are demanding that the municipal corporations put their council/directors, staff and the rate-payers/shareholders of the municipality in jeopardy to fulfill a mandate that cannot be implement by the province.
The Ministry of Natural Resources (MNR) claim that the land/property owned by Ontario is 937,000 km squared being 87% 321 of the 1,070,000 square kilometres that make up the land mass of the geographical boundaries of this province. That means that only 13% of the land mass within the geographical boundaries of the province is
317 City of Flagstaff, a Body Politic, Appellant, v. George Babbitt, Jr., Appellee. Sup. Court. Aug. 6, 1968. The Court of Appeals, Stevens, J., held that actions of subdivider in testifying that he did not intend to dedicate land designated in subdivision plat as park to public, in failing to include park in dedicatory working on record plat, in establishing and grading streets and replatting lots in portion of area designated as park, and in executing easement for sewer line to city across park and paying taxes on such property were inconsistent with intent to dedicate park to public but rather were consistent with intent to retain property as private property of subdivider and they rebutted presumption of dedication arising from plat. Judgment affirmed.
318 “3 Edw. I. – 1275 Statute of Westminster the First. Chap. XXVI. No King’s Officers shall commit extortion. No sheriff, nor other the king’s officer, shall take any reward to do his office, but shall be paid of that which they take of the king; and that so doeth shall yield twice as much, and shall be punished at the king’s pleasure. The Book of Rights: Or, Constitutional Acts and Parliamentary Proceedings Affecting Civil and Religious Liberty in England, from Magna Carta to the Present Time, Edgar Taylor, F.S.A., 1833, p. 57
319 BELONG (Black’s Law Dictionary, 9th Edition, 2009, p. 175) – 1. To be the property of a person or thing. 2. To be connected with as a member. 320 [G.R. No. 166471, March 22, 2011], TAWANG MULTI-PURPOSE COOPERATIVE, PETITIONER, VS. LA TRINIDAD WATER DISTRICT, RESPONDENT.
321 STRATEGIC DIRECTIONS FOR MANAGEMENT OF ONTARIO CROWN LAND PL 1.01.01, Compiled by – Branch, Lands & Natural Heritage Section, Lands & Waters, Date Issued February 1993. 2.2 WHAT IS CROWN LAND? Crown Land, for the purpose of this document, is defined as those areas of Ontario over which MNR has stewardship responsibility under the authority of the Public Lands Act. These lands make up 87 percent of the province, over 937,000 km2, including 164,000 km2 under water. The value of this Crown Land asset has been estimated at $22 billion. http://www.mnr.gov.on.ca/stdprodconsume/groups/lr/@mnr/@crownland/documents/document/mnr_e000072.pdf, as of august 21, 2012.
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privately owned. (see Fig. 1). And with the province following the same failed reports322 as Europe and California on how to govern Ontario, they need every tax dollar they obtain. And how are they fulfilling this; with fines, fees, permits, licenses, private-public partnerships, and exactly the same plans as Europe and California…and we all know this leads to economical instability. The one exception is that the Ontario government was told not to have referendums on money or taxation issues because, as is the case of California323, the government would be in the same financial difficulties as California.
.
322 Stagnation in your Swedish town? Blame Florida, Published: 14 Oct 08 11:10 CET Online: http://www.thelocal.se/14946/20081014/
323 Investing in People: Creating a Human Capital Society, p. 31
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PLACES TO GROW ACT
Official plan conformity 12. (1) The council of a municipality or a municipal planning authority that has jurisdiction in an area to which a growth plan applies shall amend its official plan to conform with the growth plan. 2005, c. 13, s. 12 (1).
Conformity = submitting and surrendering to something. The removal of Municipality's ability, to represent the people of their communities, by enforcing, through legislation, mandatory conformity with the Provincial Plan is not in the best interest of the People of Ontario. This Act, in itself, is the removal of everyone’s constitutional fundamental rights and this is not the first time that legislation has been created, by this government that has been documented as unconstitutional324. The reports "Investing in Human Capital Creating a Human Capital Society Panel on the role of government.", "Small, Rural and Remote Communities: An Anatomy of Risk", and "Ontario in the Creative Age"325 should all be removed from operation as these reports are making recommendations, to government, to remove Ontarian's democratic rights, not only in regards to electricity, but our democratic right of referenda on money and environmental issues. With the words from the Panel on government it would seem that they were fully aware that their recommendations were flawed when they presented their report to government.
“Direct democracy permits individual citizens to make choices about specific policy issues. However, direct democracy raises serious concerns about the ability of referenda to address complex policy issues, the role of money in the voting process, the loss of democratic debate and the hindering of rational policy making. Given the experience with direct democracy in other jurisdictions (e.g., California), we believe that its role should be very limited and carefully structured. It should not be used for general policy decisions manageable by representative democracy, such as the desirable level of taxes.”
When they presented these reports to the government they were fully aware that their recommendations had failed because they used "California" as an example to remove Ontarian's democratic rights. It is conceivable that with this statement, they already knew that they were placing the people and the province of Ontario onto a financially unsustainable venture and the only way their recommendations could be implemented was to remove democracy. California was already teetering on the verge of insolvency when these reports were created and presented, this is why they didn’t
324 Ontario Bar Association letter to MOE John Gerretsen, Re: Comments on proposed Proposal to Amend Ontario Regulation 419/05: Air Pollution – Local Air Quality, EBR Registry Number 010-6587, dated: Oct. 6, 2009.
325 Stagnation in your Swedish town? Blame Florida - Published: 14 Oct 08 11:10 CET. Online: http://www.thelocal.se/14946/20081014/
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use all of the information presented326 and only used the information that they felt supported their (the California) mandate. Knowing that Ontario would be the failure, similar to California, they knew that they would have to recommend the removal of democratic rights because when the province goes into insolvency, then the Federal government would have to do what it could to bail out Ontario, at the cost to the taxpayers of, not only Ontario, but all of Canada.
Many Municipalities are questioning the Official Growth Plan and the Growth Plans for their communities. MPPs’ are questioning the validness of the Growth Plans and the sustainability, where specific areas are slated for specific growth and yet the supporting industry is forced to close327. The public is denied the ability to purchase locally manufactured goods because of Growth Plans and what is and is not allowed within certain designated areas. These Growth Plans and any legislation/regulations and/or policies the supports these plans are faulted.
The Places to Grow Act is based on the Provincial Policy Statement (PPS), which in-turn is based on misinformation. Having both the PPS and The Places to Grow Act legislated is an overlap of legislation and it would seem a desperate attempt to ensure that any loop-holes that may or may not exist are closed. The Places to Grow Act is also to ensure that the Provincial Government has complete control over their own interests which may include AMO. When there are specific designations, as in agricultural lands, there is a decrease in available capital for the agricultural community (see Mr. Given previous statement). This had/has the same impact on agricultural land as a municipal “plan” and municipal plans are being dictated by policy from the provincial government. Every and all designations, planning or land use conditions being legislated removes the financial stability of the agricultural and municipal structure. By reducing the available collateral the farming community, through “zoning’ and “planning”, becomes unstable. This instability causes the farming community to become less sustainable, meaning that the dollar value within the industry is less fluid, creating a short fall for crop loans, which in turn, lessens the ability for the farming community to remain viable.
This in turn creates a “buyers” market and although “planning” has designated agricultural lands as classes of soil types, based on the Planning Act, the Greater Golden Horseshoe Plan, the Places to Grow Act, the Conservation Authorities Act, etc., this removes good agricultural lands and turns it into development lands for lesser dollar value, meaning that developers can purchase prime agricultural property for discounted values for future urban development, instead of the farmer having the ability to use said
326 "The views expressed in the background papers and the staff report do not, necessarily, represent the views of the Panel members; the position of the Panel is set out in this document… " Page 1 Preface of Investing in People: Creating a Human Capital Society.
327 “I still take great offense with the report’s recommendation to pull the plug on small communities, as I do with the generalization that everything north of the GTA is on life support, and more importantly, I am deeply offended that this government would actually accept such rubbish and demoralizing attitude,” . Bill Walker, MPP for Grey-Bruce press release, dated November 28, 2013
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land for retirement purposes and or succession. The only way to completely protect agricultural land, or any property, is by the private property owner and his/her ability to remain financially viable.
This also impacts municipalities. During the planning/designation period a municipality will lose assessed values. This in turn creates deficit property tax support for the municipalities for infrastructure, schools and business opportunity. When there is a viable, strong agricultural community, there are a number of spin off businesses that, again, create sustainability for the municipalities. Some but not all of these spin off industries are: Banks, Tractor dealerships, car and truck dealerships, restaurants, retail, garages, feed co-ops, accountants, lawyers, teaching staff, municipal staff, librarians, etc. The only way to maintain a strong community is by not designating/zoning properties.
According a study, in 2006 OMAFRA published the Land Evaluation and Area Review for the Greenbelt Study Area. The report goes on to say:
It is also understood that the Province has completed a LEAR analysis for the Greater Toronto Area (GTA) using a similar methodology to that developed for the Greenbelt Study Area. The Study Area included all of Dufferin County and adjacent municipalities. However, due to licensing restrictions and confidentiality issues, the OMAFRA is not able to release this information to municipalities and the general public.”328
Without OMAFRA releasing/including the restricted information, a municipality is not fully informed and this presents future problems, in regards to municipalities being left open to statements of “bad faith”, as it is the responsibility of municipal Council to make fully informed decisions. It is also the obligation of municipal staff to ensure that all information, legislation, regulation and policy is fully understood and the restrictions that are place in those documents in regards to exactly what the jurisdiction of the municipality is.
This has a similar ring to what Severn Bridge is going through, in regards to the Green Energy Act. According to the Orillia Packet & Times, the Mayor is every upset:
“…what we have are government agencies and private companies being given access to the study, but the mayor can’t see it. OPA spokesperson Tim Butters told The Packet & Times the soil study is “a commercially confidential submission to the OPA by the developer which cannot be released without their permission.”
328 Identification of Prime Agricultural Areas Using a LEAR Methodology for the Town of Mono, May 2011, p. 2.
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The report being discussed was done by Colville Consulting329, which in turn also has been involved with a “peer review” for the Town of Lincoln in conjunction with a report present to the Town of Lincoln by Stantec. In this review it states:
“3.2 Overview of Proponent’s Report The Planning Report in Support of Proposed IMS Spring Creek Compost Facility submitted by Urban and Environmental Management was the primary document reviewed for the peer review related to land use planning. An overview of the supporting technical studies submitted with the application was also conducted. The Planning Report contained the following key information and conclusions with respect to the proposed composting facility: The subject site is designated as ‘Rural Area in the Regional Niagara Policy Plan; The proposed composting facility is to be located on lands designated as ‘Good General Agriculture’ in the Town of Lincoln; The Official Plan also identifies portions of the subject site as a Deer Range, a High Potential Forest Resources Area, and a Bedrock Resource Are on Schedule 2 of the Official Plan The site is zoned as Agricultural (A) in the Town of Lincoln Zoning By- law The composting facility is not permitted use in the Regional Plan, Official Plan or Zoning By-law, therefore amendments are required to all three documents; The land is defined as Prime Agricultural by the province MDS criteria do not apply to the proposed use; The province is promoting increased waste diversion to meet provincial objectives, with specific interest in composting of organic waste The Planning report ultimately concluded that the proposed use was consistent with the PPS, was compatible with surrounding land uses, there were no reasonable alternative locations, it would meet the intent of the Regional and Municipal policies, and it would not negatively impact agricultural, natural heritage or aggregate resource areas.” 330
In Section 3.3 Town of Lincoln Official Plan policy statement, Section 5.3.3 (b) there is statement that it should “discourage development in Woodland Improvement Act forest, forests and woodlots and plantations except in consultation with the Ministry of Natural Resources.” And that the applicant’s proposed composting facility complies with this policy as it retains the forested area of the side in its entirety and also recommends a buffer for added protection.”331
The problem with this report is that, it would seem that some background information had not been rechecked, as the Woodland Improvement Act had been
329 Province looking shady on solar farm front By Nathan Taylor, Orillia Packet & Times, Tuesday, July 31, 2012.
330 Peer Review for Composting Facility Applications Auguste, 14, 2006, p. 10
331 Peer Review for Composting Facility Applications Auguste, 14, 2006, p. 20.
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repealed, according to the provincial government in 1998332. With this Act having been repealed, this places the entire report in question. And with the affiliation between Stantec, the repetitive planning recommendations of Stantec and its affiliation with Samsung333 (Green Energy Act), it would seem that, although a peer review had been completed all information had not been fully presented and/or evaluated. Stantec, as a planning and consulting company has been involved throughout Ontario with various municipal plans. Stantec is an international company with its head office in Edmonton Alberta and it was involved with planning for California U.S.334
In this report, it is also stated that 3 different documents would have to be amended to facilitate a composting site and that this facility would be allowed on agricultural land. If it is this simple to amend 3 official plans/documents and rezone prime agricultural land for a different development, it would seem that all plans are open to arbitrary abuse.
One might wonder why the majority of the municipalities in Ontario all look identical, with interlocking sidewalks on the Main Streets, why there are intersection lane barriers, (California planning), that have to be removed because of damage to municipal equipment, crosswalks that are interlocking brick, street lights that look like antique black street lamps of yesteryear, street signs that are the same style as the street lamps but have blue backgrounds with white lettering? All are identical are the designs/municipal plans. For example, Orangeville could be confused with the majority of municipalities throughout Ontario.
With this being the case, all “official plans” should be scrutinized and all information should be, not only peer reviewed, but considered open to criticism/re- evaluation and not necessarily be accepted at face value.
332 Woodlands Improvement Act, R.S.O. 1990, CHAPTER W.10, Note: This Act was repealed on December 18, 1998. See: 1998, c. 18, Sched. I, s. 65.
333 FIELD SURVEY SUMMARY AND RECOMMENDED WORKPLAN SAMSUNG RENEWABLE ENERGY INC. SOLAR PV ENERGY PROJECT – PHASE 2 (KINGSTON), Prepared for: Samsung Renewable Energy Inc., 55 Standish Court, Mississauga, ON L5R 4B2, Prepared by: Stantec Consulting Ltd., 1 – 70 Southgate Drive, Guelph, Ontario N1G 4P5
334 Strategic Mergers Drive Stantec’s Plan http://california.construction.com/california_construction_projects/2011/0606_StrategicMergers.asp
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CONCLUSION
From the beginning of this report we have shown some of Canadian's constitutional history, and how the Municipal Act, the Planning Act, and the Places to Grow Act, BNA, etc., must all be read as one document in regards to the authority of Planners, Councils, Building and By-law Inspectors. As expressed in Georgian Bluffs (Township) v. Moyer, 2012 ONCA 700, DOCKET: C53734, at pages 6 and 7.
"This action should never have occurred. It was caused by an incompetent employee of the Township who simply did not know what his job was or the limitations to his legal powers, …" [20] The action that “should have never occurred” was an action brought by the Township. The appellant successfully defended himself against the most significant element of the claim advanced by the Township – namely, an order that he remove all objectionable items from his 100-acre property. The appellant also succeeded in having the clean-up costs struck from his property tax bill, in establishing that the Township had trespassed upon his property, and, as we have found, in establishing that the Township had converted chattels he owned. In other words, the appellant was successful on every substantive issue raised in the litigation…"
We have shown the legislators intent that for a municipality to plan, designate or zone something it must, with the approval of the Minister and the rate-payers, acquire the land it wishes to have developed. We have shown the history behind the English communities and their creation and how it is different from Canadian communities, being that in England they have council communities and council housing throughout entire municipalities, whereas in Canada there is only "council housing" when it involves social housing developments built for low-income housing and low-income rentals which municipal boards are involved.
There is no mention in the Municipal Act that Municipal corporations have the ability to regulate private property, other than those entities that Municipal corporations have entered into agreements with and/or have created corporations under the Municipal Act, and is only applicable on "public properties", Crown properties, government properties or corporations that have entered into agreements with levels of government for public services and have been specifically created to provide public service, including Social Housing Residential Units, Health Boards, School Boards, Conservation Authorities, etc. The Planning Act restricts any implementation of designation and control onto properties that have been acquired by the Municipal corporations.
We have also referred to the BNA and the legislative capacity of the provincial government. With the statement from the AMO Annual Report, there should be great concern, within the municipal corporations, that perhaps AMO has lost sight of what it was created for, including the original mandate and obligations to the municipal corporations. The municipal corporations should be demanding over-sight and
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accountability in regards to AMO executive and board, particularly if the agreement reached between the Federal government and AMO was not thoroughly discussed and “official plans” were part and parcel of the agreement. And how is it that the provincial plans are being implemented through an agreement involving the Federal Government and the Municipal corporations. This is beyond the purview of the province to interfere with this agreement or to dictate the “how to implement” and which criteria must be in the official plans that are part of the agreement.
Throughout this document we are hopeful, that with the information provided, that Municipal council/directors will take a step back and ask questions of their staff, advisors, consultants and their residents. It would seem that the pertinent information for making informed decisions, which is needed, is not being provided during the advisory process to either the municipal corporations elected officials, their staff or the advisors.
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GLOSSARY
AB ABSURDO: Latin: an evidentiary suggestion or statutory interpretation that is, or leads to, an absurdity. An example of an ab absurdo interpretation of a statute or of a contract would be where the conclusion empties the phrase under scrutiny of no effect whatsoever. Neither the legislature nor persons who sign contracts can intend that a phrase of their contract have no effect whatsoever and so therefore, such an interpretation would be ab absurdo. http://www.duhaime.org/LegalDictionary/A/AbAbsurdo.aspx
ABBOT – Abbat or Abbot (abbas, Lat., abbe, Fr., abbud, Sax.; others derive from Abba, Abba, Syriac, father). A spiritual lord or governor, who had the rule of a religious house. An abbot, with the monks of the same house, were called the convent, and made a corporation. Terms de Ley, 4. Henry VIII., as is well known, dissolved the monasteries, &c. Dictionary of Jurisprudence, J.J.S. Wharton, Esq., 1847-48, pg. 3
ABSOLUTE PROPERTY (Black’s Law Dictionary, 9th Edition, 2009, p. 1336) – Property that has full and complete title to and control over.
ABSOLUTE INTEREST (Black’s Law Dictionary, 9th Edition, 2009, p. 885) – An interest that is not subject to any condition.
ACCESS EASEMENT – Black’s Law Dictionary, 9th Edition, 2009, p. 586. – An easement allowing one or more persons to travel across another's land to get to a nearby location, such as a road. The access easement is a common type of easement of necessity. Also termed easement of access; easement of way; easement of passage.
ACTION – The form prescribed by law for the recovery of one's due, or it is a lawful demand of a person's right. The learned Bracton thus defines it:--"Actio nikil aliud est quam jus prosequendi in judicio quod alieni debetur (an action is nothing else than the right of prosecuting to judgment that which is due to any one), Celsus Dig. 44, tit. 7, ss. 51. Actions are divided into criminal and civil; criminal actions are more properly called prosecutions, and perhaps, actions penal, to recover some penalty under statute, are properly criminal actions. Actions civil are divided into three clauses:-- 1. Real, which concern real property only – they are three, action of dower, down unde nihil habet, and quare impedit; 2. Personal, such as concern contracts, both sealed and unsealed, and offenses or trespass; the former are called ex contractu –they are debt, promises, covenant, account, annuity, and seire facias; the latter are ex delicto, as case, trover, detinue, replevin, and trespass vi et armis; 3. Mixed, which lie as well for the recovery of the thing as for damages for the wrong sustained, as ejectment. See 3 bl. Com.; Stephens on Pleading; and Archbold's Criminal Pleading. For the classical learning on the subject, consult Smith's Dict. Of Antiq., titl "Action." Dictionary of Jurisprudence, J.J.S. Wharton, Esq., 1847-48, pg. 12-13
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AFFAIRS - means the relationships among a corporation, its affiliates and the shareholders, directors and officers of such bodies corporate but does not include the business carried on by such bodies corporate; Canada Business Corporations Act, R.S.C., 1985, c. C-44. http://laws-lois.justice.gc.ca/eng/acts/C-44/FullText.html
ACQUIRED RIGHT DOCTRINE– Black’s Law Dictionary, 9th Edition, 2009, p. 26. The principle that once a right has vested, it may not be reduced by later legislation.
ADVERSE POSSESSION - Black’s Law Dictionary 9th Ed. 2009, p. 62. 1. The enjoyment of real property with a claim of right when that enjoyment is opposed to another person’s claim and is continuous, exclusive, hostile, open, and notorious. 2. The doctrine by which title to real property is acquired as a result of such use or enjoyment over a specified period of time.
ALIENATE (Black’s Law Dictionary, 9th Edition, 2009, p. 84) – To transfer or convey (property or a property right) to another.
ALIENTATION (Black’s Law Dictionary, 9th Edition, 2009, p. 84) – 1. Withdrawal from former attachment; estrangement. 2. Conveyance or transfer of property to another
AMENDMENT – A correction of any errors in actions, suits, or prosecutions, which power has been much extended, but not so as to prejudice any party. Consult Chitty's Archbold, tit. "Amendment." Dictionary of Jurisprudence, J.J.S. Wharton, Esq., 1847- 48, pg. 26.
APPROVEMENT - i.e., Improvement. Profits of land; also, where a person has a right of common on the lord's waste, and the lord encloses part of the waste, leaving sufficient common. Dictionary of Jurisprudence, J.J.S. Wharton, Esq., 1847-48, pg. 33.
ARCHBISHOP – The chief of the clergy in his province; he has supreme power under the Queen in all ecclesiastical causes, and superintends the conduct of other bishops…The archbishops are said to be inthroned, when they are vested in the archbishopric, whereas bishops are said to be installed. England has two archbishops, Canterbury and York. The Archbishop of Canterbury is styled Primate of all England, and the Archbishop of York Primate of England. Ireland has four, Armagh, Dublin, Cashel, and Tuam, of whom the former is Primate of all Ireland. Dictionary of Jurisprudence, J.J.S. Wharton, Esq., 1847-48, pg. 35
ASSIGN/ASSIGNS/ASSIGNEES: A person to whom property, rights, or powers are transferred. To sell, give or otherwise transfer some legal right or responsibility to another. The assignee (sometimes also called an "assign") is the person who receives the right or property being given. The assignor is the person giving; assigning the item of property. In Sovereign Fire Insurance v Peters, Justice Richie of Canada's Supreme Court wrote: “…assign is, in law, to transfer or make over to another the right one has
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in any object…A mortgage is one thing; an assignment of the property is quite another; the one being conditional the other absolute.” http://www.duhaime.org/LegalDictionary/A.aspx ASSIGN – Assign, a person appointed by another to do any act or perform any business, also a person, who takes some right, title or interest in things by an assignment from an assignor. They are divided into: 1. Assignees by deed, as when a lessee of a term (see "term") sells or assigns it to another, he is an assignee by deed; 2. Assignees by law, as when property devolves upon an executor, without any specific appointment, the executor is an assignee in law to the testator: assignees, however, are especially those persons in whom the property of a bankrupt vests by virtue of their appointment. These are either official assignees, appointed by some commissioner, or creditors' assignees, appointed by the creditors who prove debts under the fiat to the value of 10l. or upwards, at the first public sitting, and confirmed by the commissioners. Dictionary of Jurisprudence, J.J.S. Wharton, Esq., 1847-48, pg. 40
BAD LAW (Black’s Law Dictionary, 9th Edition, 2009, p. 159) – Invalid or void; legally unsound
BAILIFF – A keeper or protector, an officer who puts in force an arresting process, a land steward. There are several kings of bailiffs, whose offices and employments greatly differ from one another, yet they agree in that the keeping or protection of something belongs to them all. Encyc. Lond. Dictionary of Jurisprudence, J.J.S. Wharton, Esq., 1847-48, pg. 50
BAILIWICK – [bailli, Fr., and wic, Sax.], the jurisdiction of a bailiff. A county. A liberty exempted from a sheriff, over which a bailiff is appointed by the lord of the liberty or franchise, with such powers within his precinct as an under-sheriff exercise under a sheriff. Wood's Inst. 206. Dictionary of Jurisprudence, J.J.S. Wharton, Esq., 1847-48, pg. 50
BARON – The lowest degree of nobility next to a viscount, and above that of a knight or baronet. The present bars are – 1. By prescription; for that they and their ancestors have immediately sat in the Upper House. 2. Barons by patent, having obtained a patent of this dignity to them and their heirs male, or otherwise. 3. Barons by tenure, holding the title as annexed to land; it is said that it is possession of their ancient landed territories which imparts the barony to the bishops, thereby giving them a place in the Upper House, although they hold by succession, not by inheritance; but it is rather thought that they sit in the Upper House by immemorial usage. There are also Barons by office, as in the Barons of the Exchequer. Dictionary of Jurisprudence, J.J.S. Wharton, Esq., 1847-48, pg. 55
BELONG (Black’s Law Dictionary, 9th Edition, 2009, p. 175) – 1. To be the property of a person or thing. 2. To be connected with as a member.
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BELONGINGS (Black’s Law Dictionary, 9th Edition, 2009, p. 175) – 1. Personal Property; EFFECTS – see personal property under property. 2. All property, including realty.
BILL - A document submitted to Parliament, in which are contained certain propositions for its consideration, which, being approved of, is passed, and becomes law in the shape of a Statute. To bring a bill into either House of Parliament, if the relief sought by it be of a private nature, a petition, setting forth the grievance desired to be remedied, is presented by a member, the necessary documents having been first deposited, as provided for by 7 Wm. IV. And 1 Vict., c. 83. The petition is then referred to a committee of members, and in the House of Lords to two of the Judges, who examine the matter alleged in it, and make their report to the House, upon which leave is given to bring in the bill, or otherwise. If it relate to a public matter, the bill is brought in upon motion, without petition, but in pursuance of several standing orders, as shewn in Lumbley's Parliamentary Practice. The bill, drawn out and printed, is then presented to the House; it is then read a first time, and at a convenient distance, a second time, after which it is committed, i.e. referred to a committee, composed of a few members, or the whole House, the Speaker quitting the chair, and another member being appointed chairman; the bill is then debated clause by clause, amendments made, the blanks filled up, and sometimes it is entirely new modelled; after this, the chairman reports it to the House, which re-considers the whole bill, and the question is repeatedly put upon every clause and amendment. It is then ordered to be engrossed and read a third time; if a new clause be afterwards added, it is done by tacking a separate piece of parchment on the bill, called a rider. The bill may be opposed at any of these stages, and if successfully, it must be dropped for that session, but if it pass the third reading, the title of it is settled, and it is carried by several members of the bar of the House of Peers, and delivered to the Speaker, for their concurrence; it there passes through the same forms, and if rejected, the matter passes sub silentio. If it be agreed upon, the Lords send a message to the Commons, by two Masters in Chancery, or upon matters of high importance, by two of the Judges, that they have agreed to the same, and that it remains with the Lords; but if any amendments have been made, they are sent down with the bill to receive the concurrence of the Commons. If the Commons disagree to the amendments, a conference usually follows between members deputed from each House, who try to settle the difference, and if they cannot, the bill is dropped; if the Commons agree, a message is sent to the Lords to that effect. Precisely the same forms are observed, when a bill originates in the House of Lords. An act of grace or pardon is first signed by the Sovereign, and then read once only in each House, without any new engrossment or amendment. A bill of supply, after receiving the concurrence of the Lords, is sent back to the House of Commons, instead of being deposited in the House of Peers to await the Royal Assent, which is given in two ways, either by person or by commission, and then, and not before, it becomes a Statute or Act of Parliament; it is then printed at the Queen's press, for the information of the people. Stephens Com., vol 2, p. 405. Dictionary of Jurisprudence, J.J.S. Wharton, Esq., 1847-48, pg. 61
BISHOP – An overseer or superintendent. The chief of the clergy in his diocese or jurisdiction in England, Wales, or Ireland, and the archbishop's suffragan or assistant. A
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bishop is elected by the Queen's conge d'eslire, or license to elect the person named by the Queen, in a letter missive, addressed to the dean and chapter; and if they fail to make election in twelve days, the Queen, by letter patent, may nominate whom she pleases. A bishop is said to be installed, and there are four things necessary to his complete election: -- 1. Election, which resembles the presentation of a clerk to an ecclesiastical benefice; 2. Confirmation, resembling admission; 3. Consecration, similar to institution; 4. Installation, answering to induction. The bishops are the lords spiritual in Parliament. There are twenty-four bishopricks in England, besides the bishoprick of Sodor and Man, the bishop of which is not a lord of Parliament; and eighteen in Ireland. A bishop has three powers: 1. A power of ordination, gained on his consecration, by which he confers orders, &c., in any place throughout the world; 2. A power of jurisdiction throughout his see or his bishoprick; 3. A power of administration and government of the revenues thereof, gained on confirmation. He has, also, a consistory court, to hear ecclesiastical causes, and visits and superintends the clergy of his diocese. He consecrates churches, and institutes priests, confirms, suspends, excommunicates, grants licenses for marriages and probates of wills. He has his archdeacon, dean and chapter, chancellor, who holds his courts, and assists him an matters of ecclesiastical law, and vicar-general. He grants leases for three lives, or twenty-one years, reserving the accustomed yearly rent; and he is addressed as "My Lord," being "A Right Reverend Father in God by Divine permission." Dictionary of Jurisprudence, J.J.S. Wharton, Esq., 1847-48, pg. 66-67
CHALLENGE – An exception taken either against things or jurors. Is civil actions, when a full jury cause, as well the talesmen as the jurors originally returned. Challenges are of two kinds: (1) to the array, (2) to the polls, and each of these is again subdivided into principal challenges, and challenges to the favour. (1) A challenge to the array is an objection to all the jurors returned by the sheriff, collectively, not for any defect in them, but for some partiality or default in the sheriff or his under-officer who arrayed the panel: this is either (a) a principal challenge, as that the sheriff or other returning officer is of kindred or affinity continue; that one or more of the jury are returned at the nomination of the plaintiff or defendant; that an action of battery is pending at the suite of the plaintiff or defendant against the sheriff, or at the suit of the sheriff against the plaintiff or defendant; that an action of debt is pending at the suit of the plaintiff or defendant against the sheriff, but not if by the sheriff against the plaintiff or defendant; that the sheriff or returning officer holds land depending upon the same title with that in litigation between the parties; that the sheriff, &c., in under the distress of the plaintiff or defendant; that the sheriff, &c., is counsel, attorney, officer, servant, or gossip of either party, or is an arbitrator in the same matter, and has treated thereof. (b) A challenge for favour, being such as implies at least a probability of bias or partiality in the sheriff, but does not amount to a principal challenge, as that the plaintiff or defendant is tenant to the sheriff, or that the parties are connected by marriage, &c. It seems very doubtful if the array in special jury cases can be challenged. Challenges to the array are however, seldom resorted to, since, for the causes above-named, the jury-processes may be directed to the coroner, or they would be grounds for a new trial.
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(2) A challenge to the polls, which is an exception to one or more of the jurors who have appeared individually, either (a) a principal challenge, which may be subdivided into (a) challenge propter honoris respectum, as if a lord of Parliament be called, he may challenge himself, or he may have his writ of privilege, but it is doubtful if either party can challenge him, 6 Geo. IV., c. 50, ss. 2; (b) challenge propter defectum, that the juror is not qualified, or if a woman be impanelled she may be challenged propter defectum sexus, unless it be on a writ de ventre inspiciendo; (c) challenge propter affectum, by reason of some supposed bian or partiality; (d) challenge propter delictum, when, for some act of the juror, he has ceased to be, in consideration of law, probus et legalis homo. (B) A challenge to the polls for favour is of the same nature with the principal challenge propter affectum, but of an inferior degree. No challenge can be made before a full jury have appeared; a challenge to the polls is made ore tenus, that to the array is writing. The trial of challenges to the array is entirely in the discretion of the court, sometimes they are tried by two of the coroners, sometimes by two of the jury, sometimes by the court itself. Challenges to the polls, if to the favour, are tried by two jurors, who have been sworn; if none sworn, the court appoints two indifferent person to try them, thence called triers, who are superseded as soon as two jurors are sworn; a principal challenge to the polls is tried by the court itself. Chit. Arch, Prac. 305. In criminal cases, challenges may be made, either on the part of the crown, or on that of the prisoner, and either to the whole array, or to the separate polls, for the very same reasons that they may be made in civil causes. In capital cases, the prisoner, in favorem vitae, is allowed an arbitrary and capricious species of challenge, without showing any cause at all, limited, in cases of treason, to thirty-five, and in felonies to twenty. 22 Hen. VIII., c. 14; 7 & 8 Geo. IV., c. 28, ss3. Dictionary of Jurisprudence, J.J.S. Wharton, Esq., 1847-48, pg. 97 - 98
CHARTA: 1. A charter or deed. 2. A token by which an estate is held. 3. A royal grant of privileges or liberties. Black’s Law Dictionary, 9th Edition, 2009, p. 266
CHARTA DE FORESTA. (Black’s Law Dictionary, 9th Edition, 2009, p. 266) Hist. A charter defined the extent of the crown's rights and privileges in the royal forests, granted the common people some rights to use the forests, and reduced the penalties for crimes such as poaching. The charter was first promulgated in 1217 and revised in 1225, -- Also termed Carta de Foresta; Carta Forestae.
CHARTER - [charta, Lat., chartres, Fr.], An evidence of things done between man and man; also, a statute or act of Parliament. Charters of the Queen are written instruments granting certain privileges or exemptions to towns, corporations, bodies politic. Charter of pardon, forgiving a felony or other offence committed against the Crown and its dignity. Charter of the forest comprises the laws of the forest. Fleta, l. 3, c. 14; Co. Litt. 6. Dictionary of Jurisprudence, J.J.S. Wharton, Esq., 1847-48, pg. 103.
CIVIL CODE: A document in civil law jurisdictions that purports to be a compendium of the applicable law as it pertains to the citizen. Those jurisdictions that purport to prefer
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codification - the comprehensive publication of applicable private law - are called civil law jurisdictions, such as Quebec and Louisiana, most of Europe and all of South America. The primary document that they publish, as a core statute, is called the Civil Code, and if often accompanied by a more technical document related to procedure, a code of civil procedure (code de procedure civile). http://www.duhaime.org/LegalDictionary/A/AbAbsurdo.aspx
CIVIL LIST, SETTLEMENT OF. – Prior to the Revolution of 1688, it was customary to grant to the king at the commencement of each reign the ordinary revenues of the Crown (see title TAXATION, HISTORY OF), without imposing any limitation upon his personal expenditures. These revenues were estimated in times of peace to be sufficient for the support of his majesty's person and household, and for the maintenance of his civil and military government; for all extraordinary occasions, such as times of war, grants of extraordinary supplies were made to him. In the reign of Charles II., the principle of appropriating the supplies to the specific services had been formally established, and such appropriation was in fact made the condition, or one of the conditions, upon which the same was granted; but notwithstanding that such was the recognized principle or condition of the grant, it is certain that Charles II., misapplied towards his own private pleasures a large amount of these supplies. Accordingly, upon the accession of William and Mary, Parliament provided separately for the king's civil list a sum of £700,000, derived in part from the hereditary revenues of the Crown, and partly from the excise duties, and voted in addition the sum of £500,000 for the other expenses of government not included in the civil list. At this period the civil list embraced not only the support of the king's person and dignity, but also the salaries of civil officers and pensions. In this condition the civil list remained during the reigns of Anne, George I., and George II.; but on the accession of George III., that king gave up the hereditary revenues of the Crown in England altogether, in consideration of a civil list of £800,000 a year. He still retained, however, the hereditary revenues of the Crown in Scotland, the Duchies of Cornwall and Lancaster, the Irish civil list, and various other sources of revenue, amounting not unfrequently to the annual sum of £4,700,000 odd. But notwithstanding this vast income, George III., was always in debt, through the great multiplication of pensions and sinecure places, there being the means which that prince adopted with a view to increasing the influence of the Crown. In view of these abuses, Mr. Burke in 1780 proposed his scheme of "economic reform;" and in 1782, the Rockingham Civil List Act was passed, in virtue of which many useless offices were abolished, the pension list was diminished, and the civil list expenditure was divided under eight heads. But the civil list was still suffered to comprise (in addition to the support of the king's person and dignity) the expenses of the civil government; viz., the salaries of judges, &c., annuities to members of the royal family, salaries in the diplomatic service, and numerous public pensions. During the reigns of George III., and George IV., various of these latter items of expenditure ceased to be chargeable on the civil list; and upon the accession of William IV., the civil list was still further relieved, and in particular, from judicial salaries, pensions, and diplomatic service salaries, and at the same time that king surrendered all the hereditary revenues of the Crown. Upon the accession of Queen Victoria, the
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Crown was finally restricted to a definite annuity of £385,000 for the support of the prson and dignity of the sovereign, and Her Majesty was empowered to grant pensions annually to the extent of £1200. The Crown still retains the revenues of the Duchies of Cornwall and Lancaster, those of the latter being the property of the reigning sovereign, and those of the former property of the Prince of Wales as Duke of Cornwall; and the Crown possess the capacity to acquire and also to dispose of other private property, under the Act of 39 & 40 Geo. 3, c. 88, and has acquired further facilities for these purposes by the Crown Private Estates Act, 1873 (36 & 37 Vict. c. 61). The New Law Dictionary and Institute of the Whole Law, Archibald Brown, Barrister-at-Law, M.A., Edin, and Oxon., and B.C.L. Oxon….1880, p. 94
CLAIM - Black’s Law Dictionary 9th Ed. 2009, p. 281-282 – 1. The aggregate of operative facts giving rise to a right enforceable by a court. 2. The assertion of an existing right; any right to payment or to an equitable remedy, even if contingent or provisional. 3. A demand for money, property, or a legal remedy to which one asserts a right; esp., the part of a complaint in a civil action specifying what relief the plaintiff asks for.
COMMISSION - The warrant or letters-patent which all persons exercising jurisdiction, either ordinary or extraordinary, have, to authorize them to hear or determine any cause or action, or do other lawful things, as the commission of the Judges, &c., There was formerly a High Commission Court founded on 1 Eliz., c. 1, but it was abolished in the reign of Charles II., though an impotent attempt was made to re-establish it during the succeeding reign. In commerce, the order by which any one traffics or negotiates for another; also the per centage given to factors or agents for transacting the business of others. Dictionary of Jurisprudence, J.J.S. Wharton, Esq., 1847-48, pg. 119
COMMON LAW: The Common Law includes those principles, usages, and rules of action, applicable to the government and security of person and property, which do not rest for their authority upon any express or positive declaration of the will of the legislature. Dictionary of Jurisprudence, J.J.S. Wharton, Esq., 1847-48, pg. 121.
CONSERVATION EASEMENT - Black’s Law Dictionary 9th Ed. 2009, p. 586. Property. A recorded, perpetualm, nonpossessory interest in real property held by a government entity or by a qualified nonprofit entity that imposes restrictions or affirmative obligations on the property's owner or lessee to retain or protect natural, scenic, or open-space values of real property, ensure its availability for agriculture, forest, recreational, or open-space use, protect natural resources and habitat, maintain or enhance air or water quality, or preserve the historical, architectural, archeological, or cultural aspects of the real property. Also termed conservation restriction; conservation servitude.
COPYHOLD – A base tenure founded upon immemorial custom and usage. A copyhold estate is a parcel of the demesne of a manor held at the lord's will, and according to the custom of such manor. The tenant may have similar quantities of interest in this tenure, as he might enjoy in freeholds, as an estate in fee-simple, or fee-
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tail (by particular custom) of for life, and he may have only a chattel interest, as an estate for years in it. By the custom of some manors, the estate devolves upon the heir of the ancestor's death, and is called a copyhold of inheritance. As far as the quantity and modification of interest are concerned, the tenant's estate partakes of the nature of a freehold, but because it is held by a base instead of a fee tenure, it is called a copyhold. Viewing his estate then, through the medium of its holding or tenure, the tenant is merely a tenant at will; but it is to be remarked, that this tenancy at will must be according to custom which always regulates the copyholder's interest, upon which interest the lord has no power whatever to encroach. Free copyholds or customary freeholds, however, are held according to the custom of the manor, and altogether independent of the will of the lord, while copyholds of base tenure are held merely at the lord's will. the law certainly considers freehold to be in the lord (excepting strict customary freeholds, the freehold of which is in the tenant), and the tenant to possess customary estate according to the quantity of interest it is intended he should possess, but the law will protect the copyholder, and will not permit him to be at the will or wayward caprice of the lord. The New Law Dictionary and Institute of the Whole Law, Archibald Brown, Barrister-at-Law, M.A., Edin, and Oxon., and B.C.L. Oxon….1880, p. 139.
CORPORATION: A legal entity created under the authority of a statue, which permits a groups of people, as shareholders, to apply to the government for an independent organization to be created, which then pursues set objectives, and is empowered with legal rights usually only reserved for individuals, such as to sue and be sued, own property, hire employees or loan and borrow money. Duhaime On-Line Legal Dictionary. http://www.duhaime.org/LegalDictionary.aspx as of June 28, 2011
CORPOREAL POSSESSION - Black’s Law Dictionary 9th Ed. 2009, p. 1282. Possession of a material object, such as a farm or a coin. – Also termed natural possession.
COVENANT: A written document in which signatories either commit themselves to do a certain thing, to not do a certain thing or in which they agree on a certain set of facts. They are very common in real property dealings and are used to restrict land use such as amongst shopping mall tenants or for the purpose of preserving heritage property. For example, a covenantor to a mortgage commits himself to pay the mortgage if the mortgagor defaults. A person buying a property may find that there is a covenant prohibiting dog ownership on title. http://www.duhaime.org/LegalDictionary/A/AbAbsurdo.aspx
CUSTOM – An unwritten law established by long usage and the consent of our ancestors. If it be universal, it is common law, if particular, it is then properly custom. The requisites to make a particular custom good are these: -- 1. It must have been used so long that the memory of man runs not to the contrary; 2. It must have been continued; and 3. Peaceable; also 4. Reasonable, and 5. Certain; 6. Compulsory, and not left to the option of every person, whether he will use it or not; and 7.
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Consistent with each other, one custom cannot be set up in opposition to another. Dictionary of Jurisprudence, J.J.S. Wharton, Esq., 1847-48, pg. 155-156.
DEDICATION (Black’s Law Dictionary, 9th Edition, 2009, p. 473) – The donation of land or creation of an easement for public use.
DEDICATION – COMMON LAW - (Black’s Law Dictionary, 9th Edition, 2009, p. 473) – A dedication made without a statute, consisting in the owner’s appropriation of land, or an easement in it, for the benefit or use of the public, and the acceptance, by or on behalf of the land or easement. – Often shortened to dedication.
DEDICATION – BY ADVERSE USER - (Black’s Law Dictionary, 9th Edition, 2009, p. 473) – A dedication arising from the adverse, exclusive use by the public with the actual or imputed knowledge and acquiescence of the owner.
DECIDATION – EXPRESS - (Black’s Law Dictionary, 9th Edition, 2009, p. 473). A dedication explicitly manifested by the owner.
DEDICATION – IMPLIED - (Black’s Law Dictionary, 9th Edition, 2009, p. 474). A dedication presumed by reasonable inference from the owner’s conduct.
DEDICATION – STATUTORY - (Black’s Law Dictionary, 9th Edition, 2009, p. 474). A dedication for which the necessary steps are statutorily prescribed, all of which must be substantially followed for an effective dedication.
DEDICATION – TACIT - (Black’s Law Dictionary, 9th Edition, 2009, p. 474). A dedication of property for public use arising from silence or inactivity and without an express agreement.
DEMAND – A claim, a challenging, the asking of anything with authority, a calling upon a person for anything due. It is either in deed, written or verbal, as a demand for rent, or an application for payment of a debt, or in law, as an entry on land, distraining for rent, bringing an action. Dictionary of Jurisprudence, J.J.S. Wharton, Esq., 1847-48, pg. 172
DETAINER - Forcible. See FORCIBLE ENTRY. DETAINER - Unlawful, depriving another person of possession of his goods, although the original taking was lawful. as if I distrain another's cattle, damage feasant, and before they are impounded he tenders me sufficient amends; now, though the original taking was lawful, my subsequent detainment of them after tender of amends, is not lawful, and he shall have an action of replevin against me to recover them, in which he shall recover damages for the detention, and not for the caption, because the original taking was lawful. 3 Step. Com. 524. DETAINER – Writ of, one of the five forms of process prescribed by the 2 Wm., IV., c. 39, ss 1, for the commencement of a personal action against a person already in the prison of one of the courts. Superseded by 1 & 2 Vict., c. 110, ss 1 & 2. A process lodged with the sheriff against a person in his custody is called a detainer; the officer,
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therefore, always searches the sheriff's office to see if there be any detainer lodged there against the person in his custody, before he discharges him. Cit. Arch. Prac. 534. Dictionary of Jurisprudence, J.J.S. Wharton, Esq., 1847-48, pg. 179
DOMAIN (Black’s Law Dictionary, 9th Edition, 2009, p. 557) – 1. The territory over which sovereignty is exercised. 2. An estate in land. 3. The complete and absolute ownership of land.
DUKE – The highest title of honour next to the Prince of Wales. His consort is called a dutchess. It is a mere title of dignity, without giving any domain, territory, or jurisdiction over the place whence the title it taken. It was originally a Roman dignity, denominated a ducendo, leading or commanding. Accordingly the first dukes (duces) were the ductores exercituum, commanders of armies. Under the emperors, the governors of provinces in war time, were styled duces. In aftertimes the same denomination was also given to the governors of provinces in time of peace. Encyc. Long. In Genesis we read of dukes, but they were heads of families. Dictionary of Jurisprudence, J.J.S. Wharton, Esq., 1847-48, pg. 201.
EARL – A title of nobility, formerly the highest in this nation, now the third, ranking between a marquis and a viscount. The title originated with the Saxons, and is the most ancient of the English peerage. William the Conqueror first made this title hereditary, giving it in fee to his nobles; and allotting them for the support of their state the third penny out of the sheriff's court, issuing out of all pleas of the shire, whence they had their ancient title, shiremen. At present the title is accompanied by no territory, private or judicial rights, but merely confers nobility and an hereditary seat in the House of Lords. In official instruments they are called the sovereign, "trusty and well-beloved cousins," an appellation as ancient as the reign of Henry IV. For some time after the Norman conquest they were called counts, and their wives are still called countesses. Encyc. Lond. : 1 Bl. Com. 398. Dictionary of Jurisprudence, J.J.S. Wharton, Esq., 1847-48, pg. 202-203
EMINENT DOMAIN. – So great moreover is the regard of the law for private property, that it will not authorize the least violation of it; no, not even for the general good of the whole community. If a new road, for instance, were to be made through the grounds of a private person, it might perhaps be extensively beneficial to the public; but the law permits no man, or set of men to do this without consent of the owner of the land…Besides the public good is in nothing more essentially interested, than in the protection of every individual’s private rights…” Blackstone Commentaries, 2:138-9
ENTAIL – An estate settled with regard to the rule of its descent. See TAIL. Dictionary of Jurisprudence, J.J.S. Wharton, Esq., 1847-48, pg. 221.
ESTATE – The condition and circumstance in which an owner stands with regard to his property. It is either legal, customary, or equitable. Blackstone considers legal estates
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in a threefold view, thus: -- 1. The quantity of interest or duration, divided into a) freeholds or inheritance, which are subdivided into: -- A) absolute, or fee-simple, B) limited fees; which are a) qualified or base fees, and b) fees conditional at common law afterwards called fee-tails in consequence of the Statute de Donis335, which may be (i) general or special, (ii) male or female, (iii) given in frank-marriage. B) Freeholds not of inheritance, subdivided into:-- a) Conventional, or created by the act of the parties; they are a) estates for one's own life, b) estates pur auter vie336, c) general grant, without expressing any term at all. (b) Legal, or created by operation of law: they are (a) tenancy in tail after possibility of issue extinct, b) tenancy by courtesy of England, c) tenancy in dower. (C) Estates less than freehold, subdivided into: -- a) Estates for years. b) Estates at will. c) Estates at sufferance. (D) Estates upon condition, subdivided into: -- a) Estates upon condition implied, b) Estates upon condition expressed, and these are either precedent or subsequent: a) precedent, which must be performed before an estate can vest or be enlarged; b) subsequent, which by failure or non-performance of which defeats an estate already vested; such are (i) estates held in vadio, gage, or pledge, which are of two kinds vivum vadium, or living pledge, and mortuum vadium, dead pledge or mortgage; (ii) estates by statute merchant or statute staple; (iii) estates by elegit. (2) The time of enjoyment, either (A) in possession, or (B) in expectancy, subdivided into: -- a) remainders created by convention of parties, and are (a) vested, (b) contingent or executory, (c) cross. b) Reversions arising by operation of law, 3. The number and connection of the tenants: either (A) severalty, (B) joint-tenancy, (C) coparcenary, (D) common. 2 Bl. Com., c. vii-xii. Dictionary of Jurisprudence, J.J.S. Wharton, Esq., 1847-48, pg. 230
FEE SIMPLE –An interest in land that, being the broadest property interest allowed by law, endures until the current holder dies without heirs; esp., a fee simple absolute. – Often shortened to fee. “Fee simple. Originally this was an estate which endured for as long as the original tenant or any of his heirs survived. ‘Heirs’ comprised any blood relations, although originally ancestors were excluded; not until the Inheritance Act 1833 could a person be the heir of one of his descendants. Thus at first a fee simple would terminate if the original tenant died without leaving any descendants or collateral blood relations (e.g. brothers or cousins), even if before his death the land had been conveyed to another tenant who was still alive. But by 1306 it was settled that where a tenant in fee simple alienated the land, the fee simple would continue as long as there were heirs of the new tenant and so on, irrespective of any failure of the original tenant’s heirs. Thenceforward a fee simple was virtually eternal.” Robert E. Megarry & M.P. Thompson, A Manual of the Law of Real Property 24-25 (6th ed. 1993). FEE SIMPLE
335 DE DONIS - Concerning gifts, (or more fully, de donis coiulitionalibus, concerning conditional gifts.) The name of a celebrated English statute, passed in the thirteenth year of Edw. I., and constituting the first chapter of the statute of Westm. 2, by virtue of which estates in fee-simple conditional (formerly known as “dona conditionalia”) were converted into estates in fee-tail, and which, by rendering such estates inalienable, introduced perpetuities, and so strengthened the power of the nobles. See 2 Bl. Comm. 112. http://thelawdictionary.org/de-donis/
336 PUR AUTRE VIE, tenures. These old French words signify, for another's life. An estate is said to be pur autre vie, when a lease is made of lands or tenements to a man, to hold for the life of another person. 2 Bl. Com. 259; 10 Vin. Ab. 296; 2 Supp. to Ves. Jr. 41. http://legal-dictionary.thefreedictionary.com/Pur+autre+vie
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ABSOLUTE – An estate of indefinite or potentially infinite duration (e.g. Albert and his heirs”). – Often shortened to fee simple or fee. Also termed fee simple absolute in possession. “Although it is probably good practice to use the word ‘absolute’ whenever one is referring to an estate in fee simple that is free of special limitations, conditions subsequent, or executory limitation, lawyers frequently refer to such an estate as a ‘fee simple’ or even as a ‘fee’. Thomas F. Bergin & Paul G. Haskell. Preface to Estates in Land and Future Interests 24 (2d ed. 1984). Black’s Law Dictionary, 9th Edition, p. 691. FEE – [feoh, Sax., fee, Dan., cattle, feudum, Low Lat., feu, Scot.], property, peculiar. Also an estate of inheritance divided into three species: -- (1) fee simple absolute; (2) qualified or base fee; (3) fee-tail, formerly fee conditional. Dictionary of Jurisprudence, J.J.S. Wharton, Esq., 1847-48, pg. 248.
FINE – [ finis, or finalis concordia, from the words with which it begins], in its origin, a real action brought to enforce the performance of a covenant concerning land, which terminated is a compromise, the conusor or defendant acknowledging and finally confirming the right and title of the conusee or plaintiff. It became at length to be a mode of assurance acknowledged in a court of record, either in term or vacation, and proclaimed, i.e., read openly in the Court of Common Pleas once in four successive terms. The effect of a fine levied with proclamations, according to the statue law, by a tenant in tail, was that it barred the issue inheritable under the entail, and enabled the tenant in tail to acquire and convey a base fee determinable on the failure of the issue in tail. It was no bar to the remainder or reversion, unless it was in the tenant in tail; or the remainder-man or reversioner concurred, in which case he would have acquired, instead of a base fee, the fee simple absolute. A fine might have been levied without proclamations (and was called a fine at common law), but in consequence of its imperfect operation, it was never resorted to in modern times. Another useful effect of this assurance was passing the estates, and extinguishing the rights and powers of married women, which might also have been effected by a recovery. All parties to a fine, together with their privies in estate were estopped, i.e., forbidden by law to speak or act against their own deed. In consequence of the inadequacy of a fine, effectually to unbind the trammels in which the Statute de Donis had enveloped entailed estates, and to pass a fee-simple, recourse was had to a recovery, the suffering of which enabled the tenant in tail to bar not only his estate tail, but also all remainders, reversions, conditions, collateral limitations and charges (if they were not in the Crown), not prior to the estate tail, and to acquire or covey a fee-simple, or an estate commensurate with that of the settlor. Before the 3 & 4 Wm. IV., c. 74, abolishing fines, there were three sorts in general use; 1st, sur conusance de droit come ceo, &c., 2ndly, sur conusance de droit tantum; 3rdly, sur concessit: the sur don, grant, et reader was considered obsolete. The first was most usually adopted; and, indeed, from its peculiar force and efficacy, was preferable in all cases where a forfeiture was not apprehended, or would not be incurred by levying it. Dictionary of Jurisprudence, J.J.S. Wharton, Esq., 1847- 48, pg. 256
FORCE - Any unlawful violence offered to things or persons: it is either simple, as entering into another's possession, without doing any other unlawful act; compound, when some other violence is committed, which of itself alone is criminal; or implied, as
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in every trespass, recous, or disseisin. All force is contrary to law, it is, therefore, lawful to repel force by force; quod alias bonum et justum est, si per vim vel fraudem petatur, malum et injustum est. –(That which is otherwise good and just, if it be obtained by force or fraud, is bad and unjust.) 3Rep. 78. Dictionary of Jurisprudence, J.J.S. Wharton, Esq., 1847-48, pg. 261
FORESTER - noun – 1. a person in charge of a forest or skilled in planting, managing, or caring for trees. 2. chiefly archaic a person or animal living in a forest. http://www.oxforddictionaries.com/definition/english/forester
FRANCHISE – An incorporeal hereditament or right, such as a ferry, or a market, entitling the owner of the franchise to take certain tolls or pecuniary payments. Sometimes, also, it denotes an exemption from the ordinary jurisdiction, coupled with the right of exercising a jurisdiction of one's own; and in this last signification it is a royal privilege or branch of the king's prerogative, subsisting in the hands of the subject; e.g., to be a county palatine, to have right to hold Court leet, to have waifs, wrecks, estrays, treasure-trove, royal fish, forfeitures, and deodands. (3Cru. 278). A New Law Dictionary and Institute of the Whole Law For the Use of Students, the Legal Profession and the Public. By: Archibald Brown, of the Middle Temple, Barrister-at-Law, M.A. Edin. and Oxon., and B.C.L. Oxon; Author of 'The Law of Fixtures;' 'An Epitome and Analysis of Savignty's Treatise on Obligations in Roman Law;' and Editor of 'Snell's Principles of Equity, with an Epitome of the Equity Practice.' Second Edition, - 1880, p. 236 FRANCHISE – An incorporeal hereditament, synonymous to liberty. A royal privilege or branch of the Crown's prerogative, subsisting in the hands of a subject. It arises either from royal grants, of from prescription, which presupposes a grant. The kings are almost infinite, but the principal are bodies corporate, the right to hold court-leets, fairs, markets, ferries, forests, chases, parks, warrens, fisheries. The remedy for disturbance is an action on the case. Also the right of voting in an election for a member of Parliament. Dictionary of Jurisprudence, J.J.S. Wharton, Esq., 1847-48, pg. 264
FREE SOCAGE – Socage in which the services were both certain and honorable. By the statute 12 Car. 2. ch. 24 (1660), all tenures by knight service were, with minor exceptions, converted into free socage. Black’s Law Dictionary, 9th Edition, 2009. Example: Section 22 of the British North America Act, 1867: (3.) He shall be legally or equitably seized as of free-hold for his own use and benefit of Lands or Tenements held in Free and Common Soccage or seized or possessed for his own use and benefit of Lands or Tenements held in Francalleu or in Roture, within the Province for which he is appointed…
FREEDOM OF CONTRACT (Black’s Law Dictionary, 9th Edition, 2009, p. 735 (1879)) – the doctrine that people have a right to bind themselves legally; a judicial concept that contracts are based on mutual agreement and free choice, and thus should not be hampered by external control such as government interference.
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FREEHOLD – Such an interest in lands of frank-tenement as may endure not only during the owner’s life, but which is cast after his death upon the persons who successively represent him, ... Such persons are called heirs, and he whom they thus represent, the ancestor. When the interest extends beyond the ancestor’s life, it is a freehold of inheritance, and when it only endures for the ancestor’s life, it is a freehold not of inheritance. An estate to be a freehold, must possess these two qualities: 1. Immobility, that is, the property must be either land, or some interest issuing out of or annexed to land; and, 2. a sufficient legal indeterminate duration; for if the utmost period of time to which an estate can endure be fixed and determined , it cannot be a freehold. Dictionary of Jurisprudence, J.J.S. Wharton, Esq., 1847-48, pg. 268.
FREE-MAN – An allodial proprietor; one born or made free of certain municipal immunities and privileges. Dictionary of Jurisprudence, J.J.S. Wharton, Esq., 1847-48, pg. 268
GORE – Black’s Law Dictionary, 9th Edition, 2009 – A small, narrow slip of land. 2. A small piece of land, such as may be left between surveys that do not close.
GOVERNOR - noun – 1. i) an official appointed to govern a town or region. ii) the elected executive head of a state of the US. iii) the representative of the British Crown in a colony or in a Commonwealth state that regards the monarch as head of state. 2. the head of a public institution: the governor of the Bank of England a member of a governing body. 3. British informal the person in authority; one’s employer. http://www.oxforddictionaries.com/definition/english/governor
GRANT – [garantir, Fr., Junius and Skinner; but Mishew thinks gratuito, or perhaps gratia, gratificor, Lat.]. a common law conveyance, operating by transmutation of possession, though when conveying uses, strictly passing a statutory seisin only, because the deed is generally appropriated to the transfer of things not in possession, as reversions, remainders, and incorporeal hereditaments, of which livery of seisin cannot be given. A grant was, therefore, said to be a conveyance in writing of property, which could not pass by actual delivery of seisin. The term "grant" is generally applied to conveyances by feoffment, fine, recovery, lease and release, bargain and sale, and covenant to stand seised. But the simple grant at common law is complete without any of the ceremonies peculiar to the above conveyances. It does not require inrolment, nor a prior lease for years, nor the consideration necessary to establish a covenant to stand seised to uses. Livery of seisin is altogether inapplicable to it, and it is not a matter of record. The operative word is "grant," which is not to imply any covenant in law, except so far as it may by force of any act of Parliament imply a convenant. 8 & 9 Vict., c. 106, ss 4; Sanders' Uses and Trusts, vol. ii., p. 29. A grant of personalty is more properly termed an assignment or a bill of sale. The Queen's grants are matters of record, and are either letters patent or writs close. Dictionary of Jurisprudence, J.J.S. Wharton, Esq., 1847-48, pg. 279
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HABENDUM: part of a title document separate from the legal description specifying an interest being conveyed in said property. i.e. terms of years, use restrictions. http://www.duhaime.org/LegalDictionary/A/AbAbsurdo.aspx
HEIR – [herie, old Fr., haeres, Lat.], a person who succeeds by descent to an estte of inheritance. It is a nomue collectieum, and extends unto all heirs; and under heirs, the heirs of heirs are comprehended in infinitum. The different kings of heirs may be thus classed, and defined: -- (a) Heir apparent. He whose right of inheritance is indefeasible, provided he outlive the ancestor: as the eldest son, who must by the course of the common law be heir to his father on his death. (b) Heir by custom. He depends upon a particular and local custom, as in borough English lands, the youngest son succeeds his father, while in gavelkind lands, all the sons inherit as parceners, and make but one heir. Co. Lit. 140.. (c) Heir by devise, or haeres factus. He is made, by will, the testator's heir or devisee, and has no other right or interest than the will gives him. (d) Heir general, or heir at law. He who, after his father or ancestor's death, has a right to inherit all his lands, tenements, and hereditaments. (e) Heir presumptive. He who, if the ancestor should die immediately, would, in the present circumstances of things, be his heir, but whose right of inheritance may be defeated by the contingency of some nearer heir being born; as a brother or nephew, whose presumptive succession may be destroyed by the birth of a child; or a daughter, whose present hopes may be hereafter cut off by the birth of a son. (f) Haeres sanguinis et haereditatis. A son who may be defeated of his inheritance by his father's displeasure. (g) Heir special. Issue upon whom an estate is entailed. The entail may either be upon the heirs general or special, being to be born of a particular mother; and these may be either male or female. (h) Ultimus haeres. He to whom lands come by escheat or forfeiture, for want of proper heirs, or on account of treason or felony. He is either the lord of the manor of the Crown. In Scotch law, heir has a more extended signification, comprehending not only those who succeed to lands, but also successors to personal property also. It distributes heirs into the following classes: -- (a) Heir active. He who is served heir, and has the right of action. (b) Heir by conquest. He who succeeds to the deceased in lands and other heritable rights, to which the deceased did not himself succeed as heir to his predecessors; as where a father leaves an estate purchased to his second son. (c) Heir of line. He who succeeds lineally by right of blood. (d) Heir male. The nearest heir male who can succeed. (e) Heir passive. When women succeed, they have all equal portions. (f) Heirs of provision, or heir by destination. Those who succeed by virtue of a particular provision in a deed or instrument. (g) Heir of tailsie. He on whom an estate is entailed. (h) Heir whatsomever. An heir at law. Dictionary of Jurisprudence, 1847, p. 288 - 289
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HERITABLE RIGHTS - Dictionary of Jurisprudence, 1847, p. 290 (305) – p. 291 (306). All rights to land, or whatever is connected with land, as mills, fishing, tithes, &c.
HEREDITAMENT: a right. Hereditament Corporeal: freehold estate in land. Hereditament Incorporeal: forms of property in land other than freehold estates or a right attached to freehold land. http://www.duhaime.org/LegalDictionary/A/AbAbsurdo.aspx
HEREDITAMENTS - Dictionary of Jurisprudence, 1847, p. 290 (305) – p. 291 (306). Every kind of property that can be inherited; i.e. not only property which a person has by descent form his ancestors, but also what he has by purchase, because his heir can inherit it from him. The two kinds of hereditaments are corporeal, which are tangible (in fact, they mean the same thing as land), and incorporeal, which are not tangible, and are the rights and profits annexed to, or issuing out of, land. The enumeration of incorporeal hereditaments in Hale’s Analyisi (p. 48) is the following: -- rents, services, tithes, commons, and other profits in alieno solo, pensions, offices, franchises, liberties, villeins, dignities. But Blackstone enumerates ten principal kinds: -- advowsons, tithes, commons, ways, offices, dignities, franchises, corodies or pensions, annuities, and rents. Although the word “hereditament” applies both to realty and personalty, yet it is in a different mode of relation. When applied to realty it generally denotes the subject of property, apart from its nature and extent; but when applied to personalty, it does not then denote the subject, but signifies some inheritable right, of which the subject is susceptible. There is a third application of this word – it is used to denote inheritable rights relating to land, or something issuing therefrom or exercisable therein, or having the same local connection or relation distinct from the enjoyment of the land itself. In this view of the description, hereditaments divide themselves into real, personal and mixed, and, therefore, as was said before, they are applicable to all the kinds of property. Solus Deus facit haeredem, non homo. Co. Lit. 5. – (God alone makes the heir, not man.)
HERITAGE – Property that passed on death to the owner’s heir; esp., land and all the property connect to it (such as a house). – also termed heritage property. Black’s Law Dictionary, 9th Edition, 2009, p. 796
HONOR (HONOUR) - A seigniory of several manors held under one baron or lord paramount; also, those dignities or privileges, degrees of nobility, knighthood, and other titles which flow from the Crown – the fountain of honour. Dictionary of Jurisprudence, J.J.S. Wharton, Esq., 1847-48, pg. 297
INFORMATION - An accusation or complaint; also, communicated knowledge. Information in Chancery. Where a suit is instituted on behalf of the Crown or Government, or of those who partake of its prerogative (such as idiots and lunatics), or whose rights are under its particular protection (such as the objects of a public charity), the matter of compliant is offered to the court by way of information by the attorney or
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solicitor-general, and not by way of petition. When a suit immediately concerns the Crown or Government alone, the proceeding is purely by way of information, but where it does not so immediately, a relator is appointed, who is answerable for costs, &c.,; and if he be interested in the matter, in connection with the Crown or Government, the proceeding is then by information and bill. Informations differ from bills in little more than name and form; and the same rules are, therefore, applicable to each. Story's Eq. Plead. 5. Crown information filed in the Court of Exchequer. A method of suit for obtaining satisfaction, is damages, for any personal wrong committed in the lands or other possession of the Crown. This is instituted to redress private wrongs, while criminal informations are resorted to to punish public wrongs, or heinous misdemeanours. See Ex OFFICIO INFORMATION. The most usual exchequer information are in cases of intrusion, for trespasses on Crown lands; debt, for Crown monies due upon breaches of penal statutes; and, in rem, when any goods are supposed to become the property of the Crown, no one claiming them, as treasure-trove, wrecks, waifs, and estrays. 4 Step. Com. 48. Information of quo warranto. See QUO WARRANTO. Information, in Scotch law, is a written pleading, ordered by the lord ordinary when he takes a cause to report to the lower house. Dictionary of Jurisprudence, J.J.S. Wharton, Esq., 1847-48, pg. 318.
INHERITANCE - Dictionary of Jurisprudence, 1847, p. 319. A perpetual or continuing right to an estate, invested in a person and his heirs.
IMPROVEMENT - See Approvement. Dictionary of Jurisprudence, J.J.S. Wharton, Esq., 1847-48, pg. 311.
INSPECT – Spot Check - n. An inspection or investigation that is carried out at random or limited to a few instances. http://www.thefreedictionary.com/spot-check INSPECT - 1. to view closely in critical appraisal : look over, 2. to examine officially
ISSUE – Used in several senses: -- 1. The legitimate offspring of parents. 2. The profits arising from lands or tenements, amerciaments or fines. 3. Event, consequence, evacuation, sending forth. 4. The point in question, at the conclusion of the pleadings between contending parties in a suit or action, when one side affirms and the other denies. The cause is then fit for trial, in order that a decision may be made in the matter. The issue must be material, single, and certain in its quality. An issue is either in fact, and tried by a jury, either
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common or special, or in law, and then determined by the court in banco. A transcript of all the pleadings is called, in an issue in law, the demurrer-book, in an issue in fact, simply the issue; it is delivered to the defendant's attorney, who, if it vary from the pleadings, is entitled to make application to the court to have it set right. Dictionary of Jurisprudence, 1847, p. 335.
INSTRUMENT (Black’s Law Dictionary, 9th Edition, 2009, p. 869) – 1. A written legal document that defines rights, duties, entitlements, or liabilities, such as a contract, will, promissory note, or share certificate. – Also termed legal instrument (“An instrument seems to embrace contracts, deeds, statutes, wills, Orders in Council, orders, warrants, schemes, letters patent, rules, regulations, bye-laws, whether in writing or in print, or party in both; in fact, any written or printed document that may have to be interpreted by the courts.” Edward Beal, Cardinal Rules of Legal Interpretation 55 (A.E. Randal ed. 3d. ed. 1924)
INSUPER – Debiting or charging a person in an account. Exchequer Term. Dictionary of Jurisprudence, J.J.S. Wharton, Esq., 1847-48, pg. 327
INTEREST (Black’s Law Dictionary, 9th Edition, 2009, p. 885) – 1. The object of any human desire; especially advantage or profit of a financial nature. 2. A legal share in something; all or part of a legal or equitable claim to or right in property
INVIOLABLE - adjective - never to be broken, infringed, or dishonoured: an inviolable rule of chastity the Polish-German border was inviolable http://www.oxforddictionaries.com/definition/english/inviolable
ITS ( DK Dictionary p. 223 ) 2. Coll the important thing; a) its, belonging to it. BELONG (Black’s Law Dictionary, 9th Edition, 2009, p. 175) – 1. To be the property of a person or thing.
JUSTICIARY – A lord chief justice.Dictionary of Jurisprudence, 1847, p. 350. JUSTICIARY – High Court of, the supreme criminal court of Scotland, composed of five of the Lords of Session, added to the Lords Justice-general and Justice-clerk; of whom the Lord Justice-general, and in his absence the Lord Justice-clerk is president. Its jurisdiction extends to the whole of Scotland. It has also the power of revising the sentences of all the Scottish inferior criminal courts, and from it there is no appeal whatever. Dictionary of Jurisprudence, 1847, p. 350.
KING – [a contraction of the Teutonic word cuning, or cyning, the name of sovereign dignity. In the primitive tongue it signifies stout, or valiant; the kings of most nations being, in the beginning, chose by the people, on account of their valour and strength. Verstegun. Camden derives the word from the Saxon cyning, and that from cun, ower, or ken, knowledge, wherewith every monarch is supposed to be invested. The Latin, rez, the Scythian reix, the Punic resch, the Spanish rey, and the French roi, come all,
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according to Postel, from the Hebrew rosch, chief, or head], monarch; supreme governor. Dictionary of Jurisprudence, 1847, p. 352.
KNIGHT– Its etymology has puzzled the most profound and learned antiquaries; its origin, however, appears to have arisen from the Greek, or some more ancient language from which the Greek itself and all other languages were derived…We have not, however, any particular data to guess whether this title was bestowed upon them by their generals or superiors, or merely acquired by their long and distinguished exploits; but it seems obvious that it was owing to one of these causes. It is clear, besides, that the word used to denote the degree of knighthood in the dialects of other nations, is also derived from that useful animal who shares with the brave the fatigues and dangers of war – the horse, a title of honour next to baronets, entitling the person on who it is conferred to be styled sir, and his wife lady. A knight is now made by the Sovereign touching him with a sword as he kneels, and saying, "Rise, Sir ----." Encyc. Lond. - Dictionary of Jurisprudence, 1847, p. 353.
KNIGHTS' FEE-– Twelve plough lands, or 480 acres. Dictionary of Jurisprudence, 1847, p. 354.
KNIGHT-SERVICE - The most universal and most honourable species of tenure, being entirely military, and the consequence of the feudal system. - Dictionary of Jurisprudence, 1847, p. 353.
LAND (Black’s Law Dictionary, 9th Edition, 2009, p. 955) – 1. An immovable and indestructible three-dimensional area consisting of a portion of the earth’s surface, that space above and below the earth’s surface, and everything growing on or permanently affixed to it. 2. An estate or interest in real property. “In its legal significance, ‘land’ is not restricted to the earth’s surface, but extends below and above the surface. Nor is it confined to solids, but may encompass within its bounds such things as gases and liquids. A definition of ‘land’ along the lines of ‘a mass of physical matter occupying space’ also is not sufficient, for an owner of land may remove part or all of that physical matter, as by digging up and carrying away the soil, but would nevertheless retain as part of his ‘land’ the space that remains. Ultimately, as a juristic concept, ‘land’ is simply an area of three- dimensional space, its position being identified by natural or imaginary points located by reference to the earth’s surface. ‘Land’ is not the fixed contents of that space, although, as we shall see, the owner of that space may well own those fixed contents. Land is immovable, as distinct from chattels, which are moveable; it is also, in its legal significance, indestructible. The contents of the space may be physically severed, destroyed or consumed, but the space itself, and so the ‘land’, remains immutable.” LAND – In its restrained sense means soil, but in its legal acceptation it is a generic term, comprehending every species of ground or earth, as meadows, pastures, woods, moors, water, marshes, furze, and heath; it includes also messauges (i.e. dwelling
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houses, with some adjacent land assigned to the use of them, usually called curtilage), tofts (i.e. places where houses formerly stood), crofts (derived from the old English word creaft, meaning handy-craft, …they are small enclosures for pasture, &c., adjoining to dwelling houses), mills, castles, and other buildings, for with the conveyance of the land, the structures upon it pass also. And besides an indefinite extent upwards, it extends downwards to the globe’s centre, hence the maxim: - Cufus est solum ejus est suque ad caelum et ad inferos….Water, by a solecism, is, in legal language, held to be a species of land; and yet it is to be observed, that a grant of a certain water will not convey soil, but only a right of fishing; but it is doubtful whether, by the grant of a several piscary, the soil passes or not, or, in other words, whether a person can have a several fishery without being owner of the soil…And in order to recover possession of a pool or rivulet of water, the action must be brought for the land, e.g., ten acres of land, covered with water, and not in the name of water only. Challower v. Thomas, Brownl. 142. Dictionary of Jurispurdence, J.J.S. Wharton, Esq., 1847-48, pg. 356-357
LEASE - A lease is a conveyance of lands or tenements to a person for life, for a term of years or at will, in consideration usually of a return of rent or some other recompense. The person who so conveys such lands or tenements is termed lessor; and the person whom they are conveyed the lessee; and when a lessor so conveys land or tenements to a lessee, he is said to be the lease, demise, or let them. The lessor may grant to the lease either by virtue of his estate, or by virtue of a power of leasing, and which power of leasing may be vested in him either by deed of settlement or will, or by some enabling statute. For example, a tenant for life is given a large ministerial power of leasing. And other tenants for limited interests enjoy the like powers. The Crown also have a limited power of leasing Crown Lands. The New Law Dictionary and Institute of the Whole Law, Archibald Brown, Barrister-at-Law, M.A., Edin, and Oxon., and B.C.L. Oxon….1880, p. 307.
LEGAL MONOPOLY (Black’s Law Dictionary, 9th Edition, 2009, p. 1098) – The exclusive right granted by government to business to provide utility services that are in turn regulated by the government.
LETTERS PATENT: A letter or document from someone in authority (Crown or Nobility, etc.) use to record an agreement, contract, a command, endow a right, privilege, title, property, etc., granting a sole right to something. Also see Crown land patent: Private property patented land that is privately owned. http://www.duhaime.org/LegalDictionary/A/AbAbsurdo.aspx or “writing of the sovereign, sealed with the Great Seal, whereby a person or company is entitled to do acts or enjoy privileges which could not be done or enjoyed without such authority.” Guide to the Federal Real Property Act, as of June 28, 2011 Section 2: 3 Interpretations and Definitions , http://www.tbs-sct.gc.ca/pubs_pol/dcgpubs/TB_G3/reg-1-eng.asp#1
LIBERTY – A franchise, being a royal privilege, or a branch of the Crown's prerogative, subsisting in the hands of the subject, as a liberty to hold pleas in a court of one's own.
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Also, generally, a state of freedom, as contradistinguished from slavery. It is of various kinds. 1. Natural liberty – a state of exemption from the control of others, and from positive laws and institutions of social life. 2. Civil liberty – the security from arbitrary will of others, which is afforded by the laws. 3. Political liberty – a more extended civil liberty, being the freedom of a nation of a state from all unjust abridgment of its rights and independence by another nation. 4. Religious liberty, or liberty to conscience – the free right of adopting and enjoying opinions on religious subjects, and of being allowed to worship the Supreme Being according to the dictates of conscience, unfettered by external control. 5. Liberty of the press – the free power of publishing everything, subject, however, to punishment for publishing what is mischievous to the public morals, or injurious to individuals. Dictionary of Jurisprudence, J.J.S. Wharton, Esq., 1847-48, pg. 378
LICENSE (Black’s Law Dictionary, 9th Edition, 2009, p. 1002) – 1. A permission, usu., revocable, to commit some act that would otherwise be unlawful; esp., an agreement (not amounting to a lease or profit a prendre) that it is lawful for the licensee to enter the licensor’s land to do some act that would otherwise be illegal, such as hunting game. “A license is an authority to do a particular act, or series of acts, upon another’s land, without possessing any estate therein. It is founded in personal confidence, and is not assignable, not within the statute of Frauds.” 2 James Kent, Commentaries on American law ‘ 452-53 (George Comstock ed., 11th ed. 1866) 2. The Certificate or document evidencing such permission.
LIEGEMAN – A subject. Dictionary of Jurispurdence, J.J.S. Wharton, Esq., 1847-48, pg. 379.
LIS PENDENS - (lease pen-dense) n. Latin for "a suit pending," a written notice that a lawsuit has been filed which concerns the title to real property or some interest in that real property. The lis pendens (or notice of pending action) is filed with the clerk of the court, certified that it has been filed, and then recorded with the county recorder. This gives notice to the defendant who owns real estate that there is a claim on the property, and the recording informs the general public (and particularly anyone interested in buying or financing the property) that there is this potential claim against it. The lis pendens must include a legal description of the real property, and the lawsuit must involve the property. Otherwise, if there is a petition to remove the lis pendens from real property not involved in the lawsuit, the plaintiff who originally recorded a false lis pendens will be subject to payment of attorneys fees as a penalty. Example: Joe Plumbob provides work and materials to Smith's home, sues to enforce a mechanic's lien, but records a lis pendens describing three other properties owned by Smith; Plumbob can be penalized by court order http://legal-dictionary.thefreedictionary.com/lis+pendens
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LOCAL - Having the properties of place. Something fixed to the freehold, or tied to a certain place. LOCAL ACTIONS – Those referring to some particular locality, as in the case of trespasses on land, the venue must be laid in the proper county where the cause of action arose. The real actions and the mixed action of ejectment are local; but the personal acts are for the most part transitory, i.e., their cause of of action may be supposed to take place any where, but when they are brought for any thing in relation to realty, they are then local. Dictionary of Jurisprudence, J.J.S. Wharton, Esq., 1847-48, pg. 390
MANDAMUS (Black’s Law Dictionary, 9th Edition, 2009, p. 1046-1047) - A writ issued by a court to compel performance of a particular act by a lower court or a governmental officer or body, usually to correct a prior action or failure to act. ALTERNATIVE MANDAMUS – A writ issued upon the first application for relief, commanding the defendant either to perform the act demanded or to appear before the court at a specified time to show cause for not performing it. PEREMPTORY MANDAMUS – An absolute and unqualified command to the defendant to do the act in question. It is issued when the defendant defaults on, or fails to show sufficient case in answer to, an alternative mandamus.
MANOR – A Noble sort of fee, granted partly to tenants for certain services to be performed, and partly to reserved to the use of the lord's family. The tenementales were granted out; the dominicales were reserved to the lord; the whole fee was termed a lordship or barony; and the court appendant to the manor the Court of the Baron. The New Law Dictionary and Institute of the Whole Law, Archibald Brown, Barrister-at- Law, M.A., Edin, and Oxon., and B.C.L. Oxon….1880, p. 402
MARKET – In its legal signification may be defined to be the liberty or privilege by which a town or lord is enable to keep a market (Old Nat. Brev. 149). Any one being a grantee thereof from the Crown may be entitled to a market; and for infringement or disturbance of his rights may obtain an injunction (Elwers v. Payne, 12 Ch. Div. 468). (See also title FRANCHISE). The Markets and Fairs Clauses Act (10 & 11 Vict., c. 114) consolidates in one Act the provisions usually contained in special Acts for constructing and regulating fairs and markets; and under the stat. 31 & 32 Vict., c. 51, the usual days of holding fairs, in inconvenient, may on representation to the Home Secretary be altered, a notice of the alteration being published in the Gazette. The fairs of the metropolis are regulated by the stats. 2 & 3 Vict., c. 47, and 31 & 32 Vict., c. 106. No one may place a stall in a market without leave from the owner of the soil (Northampton (Mayor) v. Ward, 1 Wils. 107), and trespass will lie for so doing (Norwich (Mayor) v. Swan, 2 W. Bl. 1116), unless the right to place the stall there exists by custom (as it does in many cases) or by grant, or license, or prescription. The word "market" sometimes denotes simply that purchasers of the particular commodities may always be had, in other words, that there is always a demand for the commodities; and when there is not, the damages for breach of contract of sale by non-acceptance of the commodities are measured by general considerations, and not by any particular rule. The New Law Dictionary and
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Institute of the Whole Law, Archibald Brown, Barrister-at-Law, M.A., Edin, and Oxon., and B.C.L. Oxon….1880, p. 332
MARRIAGE – [maritagium, low Lat.], a solemn contract, dictated by nature, and instituted by Providence, whereby a man is united to a woman for the lawful purposes of civilized society. The common law treats this contract as a civil institution, and, therefore, it deems it to be good and valid, where it is entered into by persons willing and able to contract, and who actually did contract, according to the solemnities established by law. Each party must exercise free-will in entering into the contract, for it is the consent, and not the mere union of the parties, which constitutes the marriage. The parties must also be able to contract, i.e., they must not labour under any disability. The disabilities are of two kinds, civil and canonical. We will firs state the civil disabilities which are enforced by the municipal or common law. 1. A prior marriage, or having another husband or wife living; for a second marriage, under such circumstances, is absolutely void; besides, it is a felony for a man or woman to marry, he or she having a wife or husband living, which is called bigamy, and is punishable by imprisonment or transportation. Bigamy, (as it is frequently termed) polygamy, is condemned by the injunctions of the Christian religion. 2. Want of age. The age for consent to matrimony is fourteen in males and twelve in females. If a marriage be solemnized under these ages, it is not absolutely void, but only imperfect; and either of them, upon attaining to their respective ages of consent, may declare the marriage void, or agree to continue together; in the former case a divorce would not be necessary, and in the latter another marriage ceremony would not be requisite. It is to be observed that the promise to marry in future is not binding if the party be not twenty-one years of age; but where there are mutual promises to marry between two persons, one of whom is of the age of twenty-one, and the other under that age, the adult is bound by the promise, the minor may maintain an action on the breach, in order to recover damages; but if the minor bread the promise, no action can be maintained upon it by the adult. 3. What of consent of parents or guardians. The statute 4 Geo. IV.,c. 76, makes this consent directory only, and the want of it will not invalidate the marriage. The consent required is either of the father, or if the father be dead, then of a guardian lawfully appointed, if there be no guardian, then of the mother, being unmarried, then of any guardian appointed by the Court of Chancery. But where the person whose consent is required, is non compos mentis, or where such person, being the guardian or the mother, is abroad, or the consent to a proper marriage is unreasonably, or from undue motives, withheld, the Lord Chancellor, upon petition, has power to give relief. If the marriage is by the publication of banns, and the party whose consent is required, dissent from the marriage, he or she attends the church and states his objection immediately after the banns are published by the minister, who will request the attendance of the dissenting party in the vestry room, after the conclusion of divine service, when the sufficiency of the objection will be decided upon by the minister; and if the objection be valid, the publication of the banns will be void; but if the objections be invalid, the marriage will be duly solemnized. If a marriage be about to be effected by license, and there is an objection to the same, the person whose consent is required,
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enters a caveat against the granting a license with the master of the facilities, before whom a discussion will take place upon it, and he will decide the question according to his discretionary jurisdiction. It is to be observed, that if the minor be a widow or widower, no consent is necessary, since he or she would then be deemed emancipated. 4. Want of reason. The marriage of a lunatic, if it be not solemnized during a lucid interval, is void ab initio. The statute 15 Geo. II., c. 30 (confirmed and extended to Ireland by 51 Geo. III., c. 37), provides, that the marriage of lunatics, and persons under phrenzies (if found lunatics under a commission, or committed to the care of trustees by any act of Parliament), before they are declared of sound mind by the Lord Chancellor, or the majority of such trustees, shall be totally void. 5. Proximity of relationship, i.e., being within the prohibited degrees of consanguinity or affinity. Consanguinity comprehends those related to a person by blood; they are either lineal or collateral consanguinity, which will be presently explained; affinity comprehends those related by marriage. This disability was, till lately, a canonical incapacity only; but the statute 5 & 6 Wm., IV., c. 54, has made it a civil disability also, by enacting that all marriages, celebrated between persons within the prohibited degrees of consanguinity or affinity, shall be absolutely void for all purposes whatever. The marriages which are now illegal in respect to proximity of degree, are the following: -- those between persons in the … The prohibition as to collaterals extends not only to consanguinity, but also to affinity. Cousins german, or first cousins, being in the fourth degree of collaterals, may marry; a nephew and great aunt, or niece, and great uncle, are also in the fourth degree, and may intermarry; and although a man may not marry his grandmother, he can, if he like, marry his grandmother's sister. But a man can neither marry his sister nor his wife's sister, for both are related to him in the second degree; not his sister's daughter, nor wife's sister's daughter, for both are in the third degree; but he may marry his first cousin, for other are in the fourth degree. Though the consanguinity of the wife are always related by affinity to the husband, and vice versa, yet the consanguinity of the husband are not at all necessarily related to the consanguinity of the wife; hence two brothers may marry two sisters, or father and son may marry mother and daughter. If a brother and sister marry two persons not related, and the brother and sister die, the widow and widower may intermarry, for, though a man is related to his wife's brother by affinity, he is not so to his wife's brother's wife, whom, if other circumstances will admit, it would be unlawful for him to marry. This prohibition as to collaterals extends also to the relations of the half blood, as well as to the whole blood, and that it also applies, though one of the parties be bastard; for though, as to many civil consequences, a bastard is deemed nullius filius, the law recognizes his relationship to his natural parents for moral purposes. We will now notice the canonical disabilities which, by the municipal or common law, only make the marriage voidable, and not ipso facto void, until sentence of nullity be pronounced in the spiritual courts. These disabilities are the following: 1. Some particular corporal infirmities, as an inability at the time of marriage to procreate children. 2. Consanguinity or affinity, which have been remarked upon, and formerly
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3. Precontract with another party; but this is no longer a disability. See 4 Geo. IV., c. 76, ss 27. It is to be observed, that sentence of nullity must be pronounced upon these disabilities during the life of the parties; for after death of either of them the courts of common law will not suffer the ecclesiastical courts to declare such marriages to have been void, because such a declaration could not then tend to the reformation of the parties. Marriage is dissolved – 1. by death; 2. by divorce; 3. by act of Parliament…. Other doctrine, in relation to Scotch marriages, by parties domiciled in England, and going to Scotland to marry, though a plain violation of the real object and intent, even if not of, the words of the Marriage Act, seems to have proceeded mainly upon the ground of public policy. The general principle is, that between persons sui juris, marriage is to be decided by the law of the place where it is celebrated. If valid there, it is valid everywhere; it has a legal ubiquity of obligation. If invalid there, it is equally invalid everywhere. But a question may sometimes occur, what is to be deemed, in the proper sense of the rule, the true matrimonial domicile? Is it the place where the actual marriage is celebrated? Or that where the parties are domiciled, if the marriage is elsewhere? Or if the husband or wife have different domiciles, whose is to be regarded? These and many other perplexing inquires may be raised; and foreign jurists have not passed them over without examiniation. Where the place of domicile of both the parties is the same with that of the contract and the celebration of the marriage, no difficulty can arise. The place of celebration is clearly then the matrimonial domicile. But let us suppose that neither of the parties has a domicile in the place where the marriage is celebrated; but it is a marriage in transit, or during a temporary residence, or on a journey made for that sole purpose, animo revertendi – what is then to be deemed the matrimonial domicile? The principle maintained by foreign jurists in such cases is, that referece to personal rights and rights of property, the actual or intended domicile of the parties is to be deemed the true matrimonial domicile; or, to express the doctrine in a still more general form, they hold that the law of the place where, at the time of marriage, the parties intend to fix their domicile, is to govern all the rights resulting from the marriage. Hence, they would answer the question proposed by stating, that in such a case the law of the actual domicile of the parties is to govern, and not the place of the marriage in transitu. Story's Confl. Of Laws, c. vi. The ancient Greek legislators considered the relation of marriage as a matter not merely of private, but also of public or general interest. This was particularly the case at Sparta, where the subordination of private interests and happiness to the real or supposed exigencies of the state was strongly exemplified in the regulations on this subject. For instance, by the laws of Lycurgus, criminal proceedings might be taken against those who married too late, or unsuitably, as well as against those who did not marry at all. These regulations were founded on the generally recognized principle, that it was the duty of every citizen to raise up a strong and healthy progeny of legitimate children to the state. So entirely, in fact, did the Spartans consider the … production of children, as the main object of marriage, and an object which the state was bound to promote, that whenever a woman had no children by her own husband, she was not
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only allowed, but even required by the laws to cohabit with another man. Xen. de Rep. Lac. i. 8. The consequences of marriage among the Romans were – 1. The power of the father over the children of the marriage, which was a completely new relation, an effect indeed of marriage, but one which had no influence over the relation of the husband and wife. 2. The liabilities of either of the parties to the punishments affixed to the violation of marriage union. 3. The relation of husband and wife with respect to property, to which head belong the matters of Dos, Donatio inter virum et uxorem, Donatio propter nutions, &c. Many of these matters, however, are not necessary consequence of marriage, but the consequences of certain acts which are rendered possible by marriage. The Roman notion of marriage was that a complete personal unity of the husband and wife (consortium omnis vitae), as shown by a continuous cohabitation, the evidence of continuing consent; for the dissent of either party, when formally expressed, could dissolve the relation. Neither in the old Roman law, nor in it later modifications, was a community of property an essential part of the notion of marriages, unless we assume, that originally all marriages were accompanied with the convetio in manum, for, in that case, the wife became filiae-familian loco, and passed into the familia of her husband; or if her husband were in the power of his father, she became to her husband's father in the relation of a grand-daughter. The legal deduction from this is, that he legal personality was merged in that of her husband, all her property passed to him by a universal succession (Gaius ii. 96, 98); and she could not thenceforward acquire property for herself. Thus she was entirely removed from her former family as to her legal status, and became as the sister to her husband's children. In other words, when a woman came in manum, there was a blending of the matrimonial and the filial relation. The position of a Roman woman, after marriage, was very different from that of a Greek woman. The Roman presided over the whole of the household; she educated her children, watched over and preserved the honour of the house, and, as the mater-familias, she shared the honours and respect shown to her husband. Far from being confined, like the Greek women, to a distinct apartment, the Roman matron, at least, during the better centuries of the republic, occupied the most important part of the house, the atrium. Smith's Dict. Of Antiq. Marriage among the Hebrews is a matter of strict obligation, for they understand literally and as a precept to the words uttered to our first parents, Gen. i. 28. Dictionary of Jurisprudence, 1847, p. 405 – 407.
MESNE - Middle, intermediate, intervening. The word "mesne" is ordinarily used in the following combinations: -- 1st. Mesne Lord; 2nd. Mesne Process; 3rd. Mesne Assignments; 4th. Mesne Incumbrances; 5th. Mesne Profits. 1st. A Mesne Lord was the term applied in the feudal times to the lord of a manor who had tenants under him, and yet a superior lord over him, and so held an intermediate position between the two. 2nd. Mesne Process is generally used in contradistinction to final process, and signifies any writ or process issued between the commencement of the action and the suing out final process or execution in such action; and includes also the writ of summons, notwithstanding this is the process by which personal actions are commenced, and therefore cannot be regarded now as mesne or intermediate process,
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in the literal sense of the word. See per Parke, B., in Harmer v. Johnson, 14 M. & W. 340. 3rd. Mesne Assignment signifies an intermediate assignment. Thus, if A grant a lease of land to B, and B assign his interest therein to D, in this case the assignments so made by B and C would be termed mesne assignments; that is, they would be assignments intervening between A's original grant and the vesting of D's interest in the land under the last assignment. 4th. Mesne Incumbrances signifies intermediate charges, burdens, liabilities, or incumbrances; that is, incumbrances which have been created or have attached to property between two given periods. Thus, when a vendor of an estate covenants to convey land to a purchaser free from all mesne incumbrances, it commonly means free from all charges, burdens, or liabilities which might by possibility have attached to it between the period of his purchase and the time of the proposed conveyance to the intended vendee. 5th. Mesne Profits are intermediate profits; that is, profits which have been accruing between two given periods. Thus, after a party has recovered the land itself in an action of ejectment, he frequently brings another action for the purpose of recovering the profits which have been accruing or arising out of the land between the periods of his title to the possession accruing or being raised, and of his recovery in the action of ejectment, and such an action is thence termed an action for mesne profits. In ejectment by landlord against tenant, mesne profits are recoverable in the very action itself of ejectment, upon proof of title by the landlord; but in all other cases of ejectment, a special action for mesne profits must have been brought as above, although now under the Judicature Act, 1873, these profits may be recovered in the action of ejectment itself. The New Law Dictionary and Institute of the Whole Law, Archibald Brown, Barrister-at-Law, M.A., Edin, and Oxon., and B.C.L. Oxon….1880, p. 343 - 344.
MESSUAGES - Dictionary of Jurisprudence, 1847, p. 421 (436) . A dwelling house with some adjacent land assigned to the use thereof.
NON-STOCK CORPORATION (Black’s Law Dictionary, 9th Edition, 2009, p. 393) – A corporation that does not issue shares of stock as evidence of ownership but instead is owned by its members in accordance with a charter or agreement. Examples are mutual insurance companies, charitable organizations, and private clubs.
NUISANCE – Black’s Law Dictionary 9th Ed. 2009, p. 1171. 1. A condition, activity, or situation (such as a loud noise or foul odor) that interferes with the use or enjoyment of property; esp., a nontransitory condition or persistent activity that either injures the physical condition of adjacent land or interferes with its use or with the enjoyment of easements on the land or of public highways. Formerly also termed annoyance. "A 'nuisance' is a state of affairs. To conduct a nuisance is a tort. In torts, the word 'nuisance' has had an extremely elastic meaning, a weasel word used as a substitute for reasoning…The general distinction between a nuisance and a trespass is that the trespass flows from a physical invasion and the nuisance does not." Roger A. Cunningham et al., The Law of Property ss. 7.2, at 417 (2nd ed. 1993).
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2. Loosely, an act or failure to act resulting in an interference with the use or enjoyment of property. In this sense, the term denotes the action causing the interference, rather than the resulting condition
OF: Belonging to: the lid of the box. Possessing: a man of means. Funk & Wagnalls Standard Desk Dictionary, p. 454. OF: preposition \əv, before consonants also ə; ˈəv, ˈäv\ : belonging to, relating to, or connected with (someone or something) —used to indicate that someone or something belongs to a group of people or things http://www.merriam-webster.com/dictionary/of
OFFICER – A man employed by the public, of whom there is a multitude. Dictionary of Jurisprudence, J.J.S. Wharton, Esq., 1847-48, pg. 472
PATENT RESTRICTIONS: a generic term that includes, “reservations, land use conditions, qualifications, provisos,” or other restrictions that are contained in letters patent. http://www.duhaime.org/LegalDictionary/A/AbAbsurdo.aspx
PLAINT - The exhibition of an action is writing. It is the first process in an inferior court, in the nature of an original writ, because therein is briefly set forth the plaintiff's cause of action; and the Judge is bound, of common right, to administer justice therein without a special mandate from the Crown. Dictionary of Jurisprudence, J.J.S. Wharton, Esq., 1847-48, pg. 522
POSSESSION - Black’s Law Dictionary 9th Ed. 2009, p. 1281. 1. The fact of having or holding property in one’s power; the exercise of dominion over property. 2. The right under which one may exercise control over something to the exclusion of all others; the continuing exercise of a claim to the exclusive use of a material object. 3. Civil Law. The detention or use of a physical thing with the intent to hold it as one’s own. 4. Something that a person owns or controls.
PREDECESSORS - Under the Succession Duty Act, 1853 (16 & 17 Vict., c. 51), which came into operation on and from the 19th of May, 1853, and which applies to all persons becoming entitled to lands or to personal estates (other than legacies) in possession after the date of commencement of the Act by death, a tax is imposed called Succession Duty, and the rate at which the tax is estimated varies with the relationship or absence of relationship of the successor to the person called his predecessor; and the term predecessor is declared by the Act (s. 2) to be "the settlor [disponer], testator, obligor, ancestor, or other person from whom the interest of the successor is or shall be derived." See title SUCCESSION DUTY. The New Law Dictionary and Institute of the Whole Law, Archibald Brown, Barrister-at-Law, M.A., Edin, and Oxon., and B.C.L. Oxon….1880, p. 417
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PREMISES – Propositions antecedently supposed or proved; also, houses or lands; also, that part in the beginning of a deed, which sets forth the grantor or grantee, and the land or thing granted or conveyed. Dictionary of Jurisprudence, J.J.S. Wharton, Esq., 1847-48, pg. 541
PRINCIPLE (Black’s Law Dictionary, 9th Edition, 2009, p. 1313) – A basic rule, law, or doctrine
PRIVATE (Black’s Law Dictionary, 9th Edition, 2009, p. 1315) – Relating or belonging to an individual, as opposed to the public or the government.
PRIVATE PROPERTY (Black’s Law Dictionary, 9th Edition, 2009, p. 1337) – Property – protected from public appropriation – over which the owner has exclusive and absolute rights
PROCEEDING - A lawsuit; all or some part of a cause heard and determined by a court, an Administrative Agency, or other judicial authority. Any legal step or action taken at the direction of, or by the authority of, a court or agency; any measures necessary to prosecute or defend an action. The word proceeding may be used for all actions or it may be used for something other than the usual type of lawsuit. For example, a special proceeding may be a particular procedure for handling a certain type of dispute. Special proceedings may be commenced by a petition or motion even when no full-fledged lawsuit is pending. They usually are confined to disputes that were not recognized under the Common Law or in Equity. For example, a proceeding to challenge decisions made by administrative agencies may be a special proceeding. A summary proceeding is governed by accelerated methods that produce a quick decision. This is done by elimination of a jury, a presentment, or indictment, or other elements that are allowed in regular proceedings. Summary proceedings are available only for certain types of cases, such as small claims, or in certain courts, such as a conciliation or Small Claims Court. Supplementary proceedings are separate from the original action. They help a successful party collect what is owed on a judgment by summoning the defendant- debtor, requiring that individual to disclose what he or she owns, and ordering that it be delivered in order to satisfy the judgment. http://legal-dictionary.thefreedictionary.com/proceeding
PROFITS - That which land yields in the shape of rent, issues, or other advantages: also, gain, pecuniary advantage. Dictionary of Jurisprudence, J.J.S. Wharton, Esq., 1847-48, pg. 549
PROGENITORS - 1. A direct ancestor. See Synonyms at ancestor. 2. An originator of a line of descent; a precursor. 3. An originator; a founder: progenitors of the new music. http://www.thefreedictionary.com/progenitor .
PROPERTY (Black’s Law Dictionary, 9th Edition, 2009, p. 1335) – The right to possess, use and enjoy a determinate thing (either a tract of land or a chattel); the right of
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ownership
PROPRIETOR – (Proprietary) – He who has a property in anything. Dictionary of Jurisprudence, J.J.S. Wharton, Esq., 1847-48, pg. 550
PROVINCE (Black’s Law Dictionary, 9th Edition, 2009, p. 1345) – 1. An administrative district into which a country has been divided. 2. A sphere of activity of a profession such as medicine or law.
PUBLIC (Black’s Law Dictionary, 9th Edition, 2009, p. 1350) – The people of a nation or community as a whole . A place open or visible to the public
PUBLIC INTEREST (Black’s Law Dictionary, 9th Edition, 2009, p. 1337) – 1. The general welfare of the public that warrants recognition and protection. 2. Something in which the public as a whole has a stake; esp., an interest that justifies governmental regulation.
PUBLIC PROPERTY (Black’s Law Dictionary, 9th Edition, 2009, p. 1337) – State or community owned property not restricted to any one individual’s use or possession.
PUBLIC NUISANCE (Black's Law Dictionary, 9th Edition, 2009, p. 1172) – An unreasonable interference with a right common to the general public, such as a condition dangerous to health, offensive to community moral standards, or unlawfully obstructing the public in free use of public property. Such a nuisance may lead to a civil injunction or criminal prosecution. Also termed common nuisance.
PUBLIC-SERVICE CORPORATION – A corporation whose operations serve a need of the general public, such as public transportation, communications, gas, water, or electricity. This type of corporation is usu., subject to extensive governmental regulation
REAL PROPERTY (Black’s Law Dictionary, 9th Edition, 2009, p. 1335) – Land and anything growing on, attached to, or erected on it, excluding anything that may be severed without injury to the land.
REASONABLE CARE – As a test of liability for negligence, the degree of care that a prudent and competent person engaged in the same line of business or endeavor would exercise under similar circumstances. Also termed due care; ordinary care; adequate care; proper care. See Reasonable Person.
REASONABLE PERSON - Black’s Law Dictionary, 9th Edition, 2009, p. 1380. – 1. A hypothetical person used as a legal standard, esp. to determine whether someone acted with negligence; specif., a person who exercises the degree of attention, knowledge, intelligence, and judgment that society requires of its members for the protection of their own and of others’ interests. The reasonable person acts sensibly,
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does things without serious delay, and takes proper but not excessive precautions. Also termed reasonable man, prudent person, ordinarily prudent person, reasonably prudent person. See reasonable care. “The reasonable man connotes a person whose notions and standards of behaviour and responsibility correspond with those generally obtained among ordinary people in our society at the present time, who seldom allows his emotions to overbear his reason and whose habits are moderate and whose disposition is equable. He is not necessarily the same as the average man – a term which implies an amalgamation of courter-balancing extremes.” R.F.V. Heuston, Salmond of the Law of Torts 56 (17th ed. 1977).
RELIEF – Legal remedy for wrongs, &c.,; charitable assistance. In the feudal law a payment made to the lord by the tenant coming into possession of an estate held under him. Abolished with other feudal grievances. Dictionary of Jurisprudence, J.J.S. Wharton, Esq., 1847-48, pg. 578
RENTS - A certain profit issuing yearly out of lands and tenements corporeal, and may be regarded as of a twofold nature: -- first, as something issuing out of the land, and a compensation for the possession during the term; and, secondly, as an acknowledgement made by the tenant to the lord of his fealty or tenure. It must always be a profit, yet there is no occasion for it to be, as it usually is, a sum of money; for spurs, capons, horses, corn, and other matter, may be, and occasionally are, rendered by way or rent: it may also consist in services or manual operations, as to plough so many acres of ground, and the like; which services, in the eye of the law, are profits. The profit must be certain, or that which may be reduced to a certainty by either party; it must issue yearly, though it may be reserved every second, third, or fourth year; it must issue out of the thing granted, and not be part of the land or thing itself, which must be either lands or tenements corporeal. There are several kinds of rent, viz.: -- 1. Rent- service, so called because it has some corporeal service incident to it, as, at the least, fealty. 2. Rent-charge, where the owner of the rent has no future interest or reversion in the land. 3. Fee-farm rent, issuing out of an estate in fee, of at least one-fourth of the value of the lands, at the time of its reservation. 4. Rent-seek, a barren rent, which is in effect nothing more than a rent reserved by deed, but without any clause of distress. 5. Rents of assize, the certain established rents of the freeholders and ancient copyholders of a manor, and which cannot be departed from; those of the freeholders are frequently called. 6. Chief rents, and both sorts are indifferently denominated. 7. Quit Rents, because thereby the tenant goes quit and free of all services. 8. Rack rent, a rent of the full value of the tenement, or near it. 9. Fore-hand-rent, otherwise called a fore-gift or income, but more commonly a fine; it is a premium by the lessee at the time of taking his lease, and has been considered as an improved rent. All kinds of rents are now recoverable by distress. 4 Geo. II., c. 28, ss 5. Rent is not due till midnight of the day upon which it is reserved, although sunset is the time appointed by law to make a proper demand of it, to take advantage of a condition of re-entry or to tender, in order to save a forfeiture; but more property speaking, the demand should be made before sunset, so as to allow sufficient light to count the money; and the person making the demand or tender must remain on the land till the sun has set. Where rent is reserved
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generally, and no mention is made, as is usual, of half-yearly or quarterly payments, nothing is due until the end of the year. Rent is considered as of a higher nature than even a debt due on an instrument under seal, as between the parties themselves; but in the case of the death of the tenant, rent is arrear, whether it be by deed or parol, is held to be of equal degree with specialty debts; and therefore in the distribution of the deceased's estate, it is to be paid with debts of the degree. Receipts or discharges given for the payment of rent require to be stamped if the sum received amount to 5l., and upward. Dictionary of Jurisprudence, J.J.S. Wharton, Esq., 1847-48, pg. 580
REVENUE – Income, annual profit received from land or other funds; also, the profits of the Crown. 2 Step. Com. 544. Dictionary of Jurisprudence, J.J.S. Wharton, Esq., 1847- 48, pg. 591
RIGHT (Black’s Law Dictionary, 9th Edition, 2009, p. 1436) – 1. That which is proper under law, morality, or ethics . 2. Something that is due to a person by just claim, legal guarantee, or moral principle. 3. A law
SEISED IN DEMESNE AS OF FEE – Is the expression used to describe the ownership so called of "an estate in fee simple in possession in a corporeal hereditament," – the word "seised" expressing the "seisin" or owner's possession of a freehold property; the phrase "in demesne" or "in his demesne" (in dominico suo), signifying that he is seised as owner of the land itself, and not merely of the seignory or services; and the concluding words "as of fee" importing that he is seised of an estate of inheritance in fee simple (Co. Litt. 17 a; Fleta, 1. 5, c. 5, s. 18; Bract. 4. 1, tr. 5 c. 2, s. 2). The New Law Dictionary and Institute of the Whole Law, Archibald Brown, Barrister-at-Law, M.A., Edin, and Oxon., and B.C.L. Oxon….1880, p. 480.
SEISIN – Possession. There is a seisin in deed, as when an actual possession is taken; or in law, where lands descend, and one has not actually entered upon them. Seisin; livery of, delivery of possession. Dictionary of Jurisprudence, J.J.S. Wharton, Esq., 1847-48, pg. 610
SERVICE – [servitium], that duty which a tenant, by reason of his estate, owes to his lord. There are many divisions of this duty in our ancient law books, as into personal and real, which is either urbane or rustic, free and base, continual or annual, casual and accidental, intrinsic and extrinsic, certain and uncertain, &c. Also, executing a writ or
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notice, by giving a copy of it to the party whom it immediately concerns. Dictionary of Jurisprudence, J.J.S. Wharton, Esq., 1847-48, pg. 613.
SHERIFF – Shire-reve, or Shiriff [vicecomes, scire gerefa, Sax., from scryan to divied], the chief officer in every county or shire, who does all the Sovereign's business in the county, the Crown, by letters patent, committing the custody of the county to him alone. The Judges, together with the other great officers and privy councillors, meet in the Exchequer on the morrow of St. Martin yearly; and then and there the Judges propose three persons, to be reported, if approved of, to the Queen, who afterwards appoints one of them to be sheriff, and such appointment generally takes place about the end of the following Hilary Term. If a sheriff die in office, the appointment of another is the mere act of the Crown. By 3 & 4 Wm, IV., c. 99, it is provided, that whenever any person shall be duly pricked or nominated by the Sovereign to be sheriff of any county, except the county palatine of Lancaster, the same shall be forthwith notified in the London Gazette, and a warrant made out and signed by the clerk of the privy council, and transmitted to the person so appointed; and the appointment of sheriff thereby made shall be as valid to all intents as if it had been made by patent under the Great Seal as formerly; and the sheriff so appointed shall thereupon and upon taking the accustomed oath of office, exercise all the authorities usually enjoyed by such officers. The oath of office here required does not affect the sheriffs of London or Middlesex. The Earl of Thanet is hereditary sheriff of Westmoreland. The counties of Cambridge and Huntingdon have one and the same sheriff. Sheriffs, by virtue of several old statutes, are to continue in their office no longer than one year, but a sheriff may be appointed durunte bene placito, and so is the form of the royal writ. Therefore till a new sheriff be named, his office cannot be determined. By 3 & 4 Wm. IV., c. 99, ss. 7, he shall, on expiration of his office, deliver to his successor a correct list of all prisoners in his custody, and of all unexecuted process. no man that has served the office of sheriff for one year can be compelled to serve again within three years after, if there be other sufficient person within the county. 1 Ric. II., c. 11. The discharge of the office is in general compulsory upon the party chosen; and if he refuse to serve, having no legal exemption, he is liable to indictment or information. Certain persons, such as militia officers, barristers, attorneys, and prisoners for debt, are not liable to serve; nor are persons under disability by judgment of law (as in the case of outlawry) to be appointed. By 13 & 14 Car. II., c. 21, ss 7, no person shall be assigned for sheriff unless he have sufficient lands within the same to answer the Crown and people. And this is the only qualification required for the office. His powers and duties are various: -- Judicially he hears and determines all cause of 20s value and under, in his county court, and in divers other civil cases. He superintends the election of knights of the shire, coroners, and verderors. As keeper of the Queen's peace, both by common law and special commission, he is the first man in the county, and superior in rank to any nobleman therein during his office. Ministerially, he is bound to execute all process issuing out of the superior courts, and in this respect is considered as an office of these courts. As the Queen's bailiff, it is his business to preserve her rights within his bailiwick, i.e., county. By 3 & 4 Wm. IV., c. 99, it provided, that every sheriff shall, within one calendar month next after the notification of his appointment in the Gazette, by writing, under his hand, nominate some fit person to be his under-sheriff, and transmit a duplicate thereof
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to the clerk of the peace, to be by him filed among the records of his office; and that every under-sheriff (except of London and Middlesex) shall, before he enters on the execution of his office, take the oath of office. By 3 & 4 Wm. IV., c. 42, every sheriff is also directed to appoint a sufficient deputy, having an office within a mile of the Inner Temple Hall, for the receipt of writs, granting warrants thereon, making returns thereto, and accepting all rules and orders made as to the execution of any process or writ addressed to the sheriff. Dictionary of Jurisprudence, J.J.S. Wharton, Esq., 1847-48, pg. 618-619
SITUATE – Verb 1. situate - determine or indicate the place, site, or limits of, as if by an instrument or by a survey; "Our sense of sight enables us to locate objects in space"; "Locate the boundaries of the property" Based on WordNet 3.0, Farlex clipart collection. © 2003-2012 Princeton University, Farlex Inc. http://www.thefreedictionary.com/situate
SOLE - adjective 1 [attributive] one and only: my sole aim was to contribute to the national team, belonging or restricted to one person or group of people: the health club is for the sole use of our guests. 2 archaic (especially of a woman) unmarried. alone; unaccompanied. Origin: late Middle English (also in the senses 'secluded' and 'unrivalled'): from Old French soule, from Latin sola, feminine of solus 'alone' http://oxforddictionaries.com/definition/english/sole--3
STANDARD OF CARE - Black’s Law Dictionary, 9th Edition, 2009, p. 1535 – In the law of negligence, the degree of care that a reasonable person should exercise.
SUBJECTS - The members of the commonwealth under a Sovereign. Dictionary of Jurisprudence, J.J.S. Wharton, Esq., 1847-48, pg. 633.
SUIT – A following. It is used in divers senses: (1) An action in law, or proceeding by bill in Chancery; a prosecution. (2) Suit of Court, an attendance which a tenant owes to his lord's court. (3) Suit Covenant, when one has covenanted to do suit and service in his lord's court. (4) Suit Custom, where service is owed time out of mind. (5) The following one in chase on fresh suit. (6) A petition to a court, &c. Dictionary of Jurisprudence, J.J.S. Wharton, Esq., 1847-48, pg. 635.
TACKING – This word denotes annexing, and as applied to mortgages it signifies the annexation of a subsequent to some prior charge, so as to squeeze out a mesne charge. This is its chief application in law; but under the Vendor and Purchaser Act, 1874 (38 & 38 Vict., c. 78), s. 7, the doctrine of tacking was abolished as from the 7th of August, 1874. However, by the Land Transfer Act, 1875, the doctrine of tacking has been restored in its entirety as from the 7th August, 1874, excepting as to anything done in the interval between the 7th of August, 1874 (inclusive), and the 1st day of January, 1876 (exclusive). The law is expressed in the following rules, which are principally taken from the celebrated case of Brace v. Marlborough (Duchess), 2P. Wms. 491: -- (1.) A third mortgagee buying in a first mortgage, being a legal mortgage, may annex
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his third mortgage to the first, so as to squeeze out, i.e., get paid before, the second or mesne mortgage; (2.) One who is a legal mortgagee to begin with, and who afterwards advances a further sum upon a judgment, may in like manner annex his judgment to his mortgage; but one who is a judgment creditor to begin with cannot annex his judgment to a first legal mortgage which he may afterwards obtain a transfer of, scil., so as to squeeze out a mesne mortgage, because otherwise he may (after actual delivery in execution under the judgment) tack the judgment to the mortgage ( Ex parte Evans, In re Watkins, 11 Ch. Div. 691). (3.) Taking is excluded when all the mortgages are equitable; also, where the third mortgage or the subsequent judgment is made or obtained with notice of the second or mesne mortgage. The New Law Dictionary and Institute of the Whole Law, Archibald Brown, Barrister-at-Law, M.A., Edin, and Oxon., and B.C.L. Oxon….1880, p.. 522
TAIL - This word, used in conjunction with the word "estate" or the word "fee", signifies an estate of inheritance, descendible to some particular heirs only of the person whom it is granted, in contradistinction to an estate in fee simple, which is an estate descendible to the heirs general (without distinction) of the person to whom it is granted. An estate tail is of two kinds, general and special. When lands are given to a man and the heirs of his body without any further restrictions, this is called an estate tail general; because how often soever such donee in tail be married, his issue by every such marriage is capable of inheriting the estate tail. But if the gift is restrained or limited to certain heirs of the donee's body, exclusively of others, as in the case of lands being given to a man and the heirs of his body on Mary his present wife to be begotten, this is an estate tail special, because the issue of the donee by any other wife is excluded. Estate tail exist chiefly in lands of freehold tenure, the statute De Donis Conditionalibus (13 Edw. 1, c. 1) upon which they depend speaking only of "tenements of inheritance." However, certain manors having, in imitation of the Courts at Westminster, introduced into their Courts the analogy of the statute, while other manors have persistently excluded it, it follows that in manors of the former class an estate tail in copyhold lands may and does exist, and arises in virtue of the same words as the like estate in freehold lands; whereas in manors of the latter class an estate tail does not exist, but a donum coniditionale only, i.e., a fee simple conditional at Common Law, as was the case with all like gifts of freehold lands before the stat. De Donis. Personal estate cannot be entailed; and words of limitation which would confer an estate tail in freehold lands given a fee simple absolute in leasehold lands (Leventhorpe v. Ashbie, Tud, Conv. 763), and a fee simple conditional in the case of grants of personal annuities (Earl of Stafford v. Buckley. C Ves. Sen. 170). The New Law Dictionary and Institute of the Whole Law, Archibald Brown, Barrister-at- Law, M.A., Edin, and Oxon., and B.C.L. Oxon….1880, p. 522.
TALLIE - The fee which is opposed to fee simple, because it is minced or pared that it is not in his free power to be disposed of who owns it, but is, by the first giver, cut or divided from all other, and tied to the issue of the donee. In short, an estate tail. Dictionary of Jurisprudence, J.J.S. Wharton, Esq., 1847-48, pg. 650.
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TERM OF YEARS - An estate for years is where lands are granted for a term of years, agreed upon by the parties, and if the agreement be for half or quarter of a year, or even for a shorter duration, the holder will be called a tenant for years, for a year in the shortest period of which the law will, in this case, take notice. This estate is denominated a term, because its duration is absolutely defined. An estate for years relates only to the possession and not the seisin of land. the law calls it a chattel interest, which descends to the executor. It is not a freehold though it be for one thousand years. Hence, if it be wished that A. should be ascertained whether it is intended that A.'s estate should have the qualities of a freehold or not, if ti be, the estate should be limited to A. and his assigns for a certain number of years, if the said A. shall so long live. In the former case, A. would have a freehold, in the latter, only a chattel interest. The word "term" signifies the estate itself, which is granted, and not merely the period of its duration; the term, therefore, may expire, during the continuance of the time, by surrender of forfeiture. The bare grant or agreement does not vest a complete estate for term of years in the grantee, but only gives him a right of entry on the lands, called his interest in the term, or intersse termini, which is an executory interest, ad may be granted over, assigned, or released. When the grantee has actually entered, the estate is then, and not before, completely vested in him. The incidents to this estate are the following: 1. The tenant is entitled to the same estovers as a tenant for life, unless restrained by special agreement. 2. He cannot commit waste. 3. He is entitled to emblements where the term for years depends upon an uncertainty. 4. His estate is subject to all kinds of debts. 5. He may assign his whole interest in the estate, or underlease a part of it, unless restrained by covenant. A surrender may either be by deed duly executed, or it may arise by operation of law, as the acceptance of another interest incompatible with the first. If the tenant have underleased, he cannot by surrendering his original lease destroy the underlease, for it would be positively unjust to frustrate his own grant. But if the original lease be rendered void, by breach of any of its conditions, or an entry by made in consequence of such breach, the underlease will then be defeated, otherwise the original grantee might, by granting an underlease, deprive the original grantor of the benefit of the conditions contained in his grant. 6. When the term for years vests in the person who is seized of the freehold, by which there is an union of the two interests in the same person at the same time, and there is no intervening estate (unless it be an interesse termini) between the term and the freehold, the term merges in the freehold and becomes extinct. 7. The estate is forfeited by the tenant attempting to create a greater interest than he has. By 8 & 9 Vict., c. 112, every satisfied term which, on the 31st December, 1845, either by express declaration or by construction of law, was attendant on the inheritance, absolutely ceased: so has every term which has been satisfied since that day, and which, either by express declaration or by construction of law, has since that day become attendant on the inheritance; and so will cease every term which shall hereafter be satisfied, and so become attendant on the inheritance. With this only exception, that every term which was so attendant by express declaration on the 31st December, 1845, is to afford to every person the same protection against every incumbrance, charge, estate, right, action, suit, claim, and demand, as it would have
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afforded to him had it continued to subsist, but had not been assigned or dealt with after 31st December, 1845. Dictionary of Jurisprudence, J.J.S. Wharton, Esq., 1847-48, pg. 659.
TITLE - Black’s Law Dictionary, 9th Edition, 2009, p. 1622 – 1. The union of all elements (as ownership, possession, and custody) constituting the legal right to control and dispose of property; the legal link between a person who owns property and the property itself. 2. Legal evidence of a person’s ownership rights in property; an instrument (such as a deed) that constitutes such evidence.
VESTED – Black’s Law Dictionary, 9th Edition, 2009, p. 1699 – Having become a completed, consummated right for present or future enjoyment; not contingent; unconditional; absolute
VILLAGE – A manor; a parish; the outpart of a parish. The following is the difference between a mansion, a village, and a manor; namely, a mansion may be one or more houses, but it must be of one dwelling house, and none near to it; for if other houses are contiguous, it is a village; and a manor may consist of several villages, or one alone. The New Law Dictionary and Institute of the Whole Law, Archibald Brown, Barrister-at- Law, M.A., Edin, and Oxon., and B.C.L. Oxon….1880, p. 691.
WAINABLE – Land that may be ploughed, manured, or tilled. Dictionary of Jurisprudence, J.J.S. Wharton, Esq., 1847-48, pg. 693.
WAPENTAKE – A hundred, as, upon a meeting for that purpose, they touched each others weapons in token of their fidelity and allegiance. Others think that it was ten hundreds or boroughs. Encyc. Lond.; 1 Ellis's Domesday, 182. Jurisprudence, J.J.S. Wharton, Esq., 1847-48, pg. 694.
WARDEN – A guardian or keeper. Dictionary of Jurispurdence, J.J.S. Wharton, Esq., 1847-48, pg. 694.
WARDSHIP – A pupillage, guardianship; an incident to tenure in socage. Dictionary of Jurispurdence, J.J.S. Wharton, Esq., 1847-48, pg. 694.
WASTE – [vastum], a spoil made either in houses, woods, lands, &c., by a tenant for life or years to the prejudice of the heir, or of the reversioner or remainder man. Whatever does a lasting damage to the freehold or inheritance is waste. It is either voluntary or actual, which an act of commission, as pulling down a house; or it is permissive or negligent, which is a matter of omission only, as by suffering it to fall for want of necessary reparations. The remedies for waste are special injunctions. Dictionary of Jurispurdence, J.J.S. Wharton, Esq., 1847-48, pg. 696
WATER – A species of land. An action cannot be brought to recover possession of a pool or other piece of water by the name water only, but it must be brought for the land
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that lies at the bottom, as twenty acres of land covered in water. Brownl. 142. Dictionary of Jurispurdence, J.J.S. Wharton, Esq., 1847-48, pg. 696
WHITSUNDAY – (Whitsuntide) – The feast of Pentecost, being the fiftieth day after Easter. It is so called, because those who were newly baptized came to the church, between Easter and Pentecost, in white garments. Dictionary of Jurisprudence, J.J.S. Wharton, Esq., 1847-48, pg. 698
ZONE, ZONING, ZONES - verb tr.v. zoned, zon·ing, zones. 1. To divide into zones. 2. To designate or mark off into zones. 3. To surround or encircle with or as if with a belt or girdle. http://www.thefreedictionary.com/zone verb [with object] 1. designate (a specific area) for use or development as a particular zone in planning: the land is zoned for housing . http://oxforddictionaries.com/definition/english/zone
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CRIMINAL CODE OF CANADA… R.S., c. C-34, s. 37. Defence of Property Defence of personal property 38. (1) Every one who is in peaceable possession of personal property, and every one lawfully assisting him, is justified (a) in preventing a trespasser from taking it, or (b) in taking it from a trespasser who has taken it, if he does not strike or cause bodily harm to the trespasser. Assault by trespasser (2) Where a person who is in peaceable possession of personal property lays hands on it, a trespasser who persists in attempting to keep it or take it from him or from any one lawfully assisting him shall be deemed to commit an assault without justification or provocation.
R.S., c. C-34, s. 38. Defence with claim of right 39. (1) Every one who is in peaceable possession of personal property under a claim of right, and every one acting under his authority, is protected from criminal responsibility for defending that possession, even against a person entitled by law to possession of it, if he uses no more force than is necessary. Defence without claim of right (2) Every one who is in peaceable possession of personal property, but does not claim it as of right or does not act under the authority of a person who claims it as of right, is not justified or protected from criminal responsibility for defending his possession against a person who is entitled by law to possession of it.
R.S., c. C-34, s. 39. Defence of dwelling 40. Every one who is in peaceable possession of a dwelling-house, and every one lawfully assisting him or acting under his authority, is justified in using as much force as is necessary to prevent any person from forcibly breaking into or forcibly entering the dwelling-house without lawful authority.
R.S., c. C-34, s. 40. Defence of house or real property 41. (1) Every one who is in peaceable possession of a dwelling-house or real property, and every one lawfully assisting him or acting under his authority, is justified in using force to prevent any person from trespassing on the dwelling-house or real property, or to remove a trespasser therefrom, if he uses no more force than is necessary. Assault by trespasser (2) A trespasser who resists an attempt by a person who is in peaceable possession of a dwelling-house or real property, or a person lawfully assisting him or acting under his authority to prevent his entry or to remove him, shall be deemed to commit an assault without justification or provocation.
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R.S., c. C-34, s. 41. Assertion of right to house or real property 42. (1) Every one is justified in peaceably entering a dwelling-house or real property by day to take possession of it if he, or a person under whose authority he acts, is lawfully entitled to possession of it. Assault in case of lawful entry (2) Where a person (a) not having peaceable possession of a dwelling-house or real property under a claim of right, or (b) not acting under the authority of a person who has peaceable possession of a dwelling-house or real property under a claim of right, assaults a person who is lawfully entitled to possession of it and who is entering it peaceably by day to take possession of it, for the purpose of preventing him from entering, the assault shall be deemed to be without justification or provocation.
Trespasser provoking assault (3) Where a person (a) having peaceable possession of a dwelling-house or real property under a claim of right, or (b) acting under the authority of a person who has peaceable possession of a dwelling- house or real property under a claim of right, assaults any person who is lawfully entitled to possession of it and who is entering it peaceably by day to take possession of it, for the purpose of preventing him from entering, the assault shall be deemed to be provoked by the person who is entering.
R.S., c. C-34, s. 72. Forcible Entry and Detainer Forcible entry 72. (1) A person commits forcible entry when that person enters real property that is in the actual and peaceable possession of another in a manner that is likely to cause a breach of the peace or reasonable apprehension of a breach of the peace. Matters not material (1.1) For the purposes of subsection (1), it is immaterial whether or not a person is entitled to enter the real property or whether or not that person has any intention of taking possession of the real property. Forcible detainer (2) A person commits forcible detainer when, being in actual possession of real property without colour of right, he detains it in a manner that is likely to cause a breach of the peace or reasonable apprehension of a breach of the peace, against a person who is entitled by law to possession of it. Questions of law (3) The questions whether a person is in actual and peaceable possession or is in actual possession without colour of right are questions of law. R.S., 1985, c. C-46, s. 72;R.S., 1985, c. 27 (1st Supp.), s. 10;1992, c. 1, s. 60(F). Punishment 73. Every person who commits forcible entry or forcible detainer is guilty of
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(a) an offence punishable on summary conviction; or (b) an indictable offence and liable to imprisonment for a term not exceeding two years. R.S., 1985, c. C-46, s. 73;R.S., 1985, c. 27 (1st Supp.), s. 11;1992, c. 1, s. 58. PART IX — OFFENCES AGAINST RIGHTS OF PROPERTY [321. - 378.] R.S., 1985, c. C-46, s. 321;R.S., 1985, c. 27 (1st Supp.), s. 42.
Breach of trust by public officer 122. Every official who, in connection with the duties of his office, commits fraud or a breach of trust is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years, whether or not the fraud or breach of trust would be an offence if it were committed in relation to a private person.
Theft 322. (1) Every one commits theft who fraudulently and without colour of right takes, or fraudulently and without colour of right converts to his use or to the use of another person, anything, whether animate or inanimate, with intent (a) to deprive, temporarily or absolutely, the owner of it, or a person who has a special property or interest in it, of the thing or of his property or interest in it; (b) to pledge it or deposit it as security; (c) to part with it under a condition with respect to its return that the person who parts with it may be unable to perform; or (d) to deal with it in such a manner that it cannot be restored in the condition in which it was at the time it was taken or converted. Time when theft completed (2) A person commits theft when, with intent to steal anything, he moves it or causes it to move or to be moved, or begins to cause it to become movable. Secrecy (3) A taking or conversion of anything may be fraudulent notwithstanding that it is effected without secrecy or attempt at concealment. Purpose of taking (4) For the purposes of this Act, the question whether anything that is converted is taken for the purpose of conversion, or whether it is, at the time it is converted, in the lawful possession of the person who converts it is not material. Wild living creature (5) For the purposes of this section, a person who has a wild living creature in captivity shall be deemed to have a special property or interest in it while it is in captivity and after it has escaped from captivity. R.S., c. C-34, s. 285.
Agent pledging goods, when not theft 325. A factor or an agent does not commit theft by pledging or giving a lien on goods or documents of title to goods that are entrusted to him for the purpose of sale or for any other purpose, if the pledge or lien is for an amount that does not exceed the sum of (a) the amount due to him from his principal at the time the goods or documents are pledged or the lien is given; and
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(b) the amount of any bill of exchange that he has accepted for or on account of his principal. 1974-75-76, c. 93, s. 24.
Theft by or from person having special property or interest 328. A person may be convicted of theft notwithstanding that anything that is alleged to have been stolen was stolen (a) by the owner of it from a person who has a special property or interest in it; (b) by a person who has a special property or interest in it from the owner of it; (c) by a lessee of it from his reversioner; (d) by one of several joint owners, tenants in common or partners of or in it from the other persons who have an interest in it; or (e) by the representatives of an organization from the organization. R.S., c. C-34, s. 292.
Theft by person required to account 330. (1) Every one commits theft who, having received anything from any person on terms that require him to account for or pay it or the proceeds of it or a part of the proceeds to that person or another person, fraudulently fails to account for or pay it or the proceeds of it or the part of the proceeds of it accordingly. Effect of entry in account (2) Where subsection (1) otherwise applies, but one of the terms is that the thing received or the proceeds or part of the proceeds of it shall be an item in a debtor and creditor account between the person who receives the thing and the person to whom he is to account for or to pay it, and that the latter shall rely only on the liability of the other as his debtor in respect thereof, a proper entry in that account of the thing received or the proceeds or part of the proceeds of it, as the case may be, is a sufficient accounting therefor, and no fraudulent conversion of the thing or the proceeds or part of the proceeds of it thereby accounted for shall be deemed to have taken place.
Taking ore for scientific purpose 333. No person commits theft by reason only that he takes, for the purpose of exploration or scientific investigation, a specimen of ore or mineral from land that is not enclosed and is not occupied or worked as a mine, quarry or digging. 2010, c. 14, s. 3.
Punishment for theft 334. Except where otherwise provided by law, every one who commits theft (a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years, where the property stolen is a testamentary instrument or the value of what is stolen exceeds five thousand dollars; or (b) is guilty (i) of an indictable offence and is liable to imprisonment for a term not exceeding two years, or (ii) of an offence punishable on summary conviction, where the value of what is stolen does not exceed five thousand dollars.
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Criminal breach of trust 336. Every one who, being a trustee of anything for the use or benefit, whether in whole or in part, of another person, or for a public or charitable purpose, converts, with intent to defraud and in contravention of his trust, that thing or any part of it to a use that is not authorized by the trust is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years. R.S., c. C-34, s. 296.
Public servant refusing to deliver property 337. Every one who, being or having been employed in the service of Her Majesty in right of Canada or a province, or in the service of a municipality, and entrusted by virtue of that employment with the receipt, custody, management or control of anything, refuses or fails to deliver it to a person who is authorized to demand it and does demand it is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years. R.S., c. C-34, s. 299.
Destroying documents of title 340. Every one who, for a fraudulent purpose, destroys, cancels, conceals or obliterates (a) a document of title to goods or lands, (b) a valuable security or testamentary instrument, or (c) a judicial or official document, is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years. R.S., c. C-34, s. 300.
Fraudulent concealment 341. Every one who, for a fraudulent purpose, takes, obtains, removes or conceals anything is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years. R.S., c. C-34, s. 318.
Extortion 346. (1) Every one commits extortion who, without reasonable justification or excuse and with intent to obtain anything, by threats, accusations, menaces or violence induces or attempts to induce any person, whether or not he is the person threatened, accused or menaced or to whom violence is shown, to do anything or cause anything to be done.
False pretence 361. (1) A false pretence is a representation of a matter of fact either present or past, made by words or otherwise, that is known by the person who makes it to be false and that is made with a fraudulent intent to induce the person to whom it is made to act on it. Exaggeration
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(2) Exaggerated commendation or depreciation of the quality of anything is not a false pretence unless it is carried to such an extent that it amounts to a fraudulent misrepresentation of fact. Question of fact (3) For the purposes of subsection (2), it is a question of fact whether commendation or depreciation amounts to a fraudulent misrepresentation of fact. R.S., c. C-34, s. 319.
False pretence or false statement 362. (1) Every one commits an offence who (a) by a false pretence, whether directly or through the medium of a contract obtained by a false pretence, obtains anything in respect of which the offence of theft may be committed or causes it to be delivered to another person; (b) obtains credit by a false pretence or by fraud; (c) knowingly makes or causes to be made, directly or indirectly, a false statement in writing with intent that it should be relied on, with respect to the financial condition or means or ability to pay of himself or herself or any person or organization that he or she is interested in or that he or she acts for, for the purpose of procuring, in any form whatever, whether for his or her benefit or the benefit of that person or organization, (i) the delivery of personal property, (ii) the payment of money, (iii) the making of a loan, (iv) the grant or extension of credit, (v) the discount of an account receivable, or (vi) the making, accepting, discounting or endorsing of a bill of exchange, cheque, draft or promissory note; or (d) knowing that a false statement in writing has been made with respect to the financial condition or means or ability to pay of himself or herself or another person or organization that he or she is interested in or that he or she acts for, procures on the faith of that statement, whether for his or her benefit or for the benefit of that person or organization, anything mentioned in subparagraphs (c)(i) to (vi). R.S., 1985, c. C-46, s. 362;R.S., 1985, c. 27 (1st Supp.), s. 52;1994, c. 44, s. 22;2003, c. 21, s. 5.
Obtaining execution of valuable security by fraud 363. Every one who, with intent to defraud or injure another person, by a false pretence causes or induces any person (a) to execute, make, accept, endorse or destroy the whole or any part of a valuable security, or (b) to write, impress or affix a name or seal on any paper or parchment in order that it may afterwards be made or converted into or used or dealt with as a valuable security, is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years. R.S., c. C-34, s. 337.
Fraud
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Fraud 380. (1) Every one who, by deceit, falsehood or other fraudulent means, whether or not it is a false pretence within the meaning of this Act, defrauds the public or any person, whether ascertained or not, of any property, money or valuable security or any service, (a) is guilty of an indictable offence and liable to a term of imprisonment not exceeding fourteen years, where the subject-matter of the offence is a testamentary instrument or the value of the subject-matter of the offence exceeds five thousand dollars; or (b) is guilty (i) of an indictable offence and is liable to imprisonment for a term not exceeding two years, or (ii) of an offence punishable on summary conviction, where the value of the subject-matter of the offence does not exceed five thousand dollars. R.S., c. C-34, s. 342.
Fraudulent concealment of title documents 385. (1) Every one who, being a vendor or mortgagor of property or of a chose in action or being a solicitor for or agent of a vendor or mortgagor of property or a chose in action, is served with a written demand for an abstract of title by or on behalf of the purchaser or mortgagee before the completion of the purchase or mortgage, and who (a) with intent to defraud and for the purpose of inducing the purchaser or mortgagee to accept the title offered or produced to him, conceals from him any settlement, deed, will or other instrument material to the title, or any encumbrance on the title, or (b) falsifies any pedigree on which the title depends, is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years. Consent required (2) No proceedings shall be instituted under this section without the consent of the Attorney General. R.S., c. C-34, s. 343.
Fraudulent registration of title 386. Every one who, as principal or agent, in a proceeding to register title to real property, or in a transaction relating to real property that is or is proposed to be registered, knowingly and with intent to deceive, (a) makes a material false statement or representation, (b) suppresses or conceals from a judge or registrar, or any person employed by or assisting the registrar, any material document, fact, matter or information, or (c) is privy to anything mentioned in paragraph (a) or (b), is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years. R.S., c. C-34, s. 344.
Fraudulent sale of real property 387. Every one who, knowing of an unregistered prior sale or of an existing unregistered grant, mortgage, hypothec, privilege or encumbrance of or on real property, fraudulently
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sells the property or any part thereof is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years. R.S., c. C-34, s. 384.
Intimidation 423. (1) Every one is guilty of an indictable offence and liable to imprisonment for a term of not more than five years or is guilty of an offence punishable on summary conviction who, wrongfully and without lawful authority, for the purpose of compelling another person to abstain from doing anything that he or she has a lawful right to do, or to do anything that he or she has a lawful right to abstain from doing, (a) uses violence or threats of violence to that person or his or her spouse or common- law partner or children, or injures his or her property; (b) intimidates or attempts to intimidate that person or a relative of that person by threats that, in Canada or elsewhere, violence or other injury will be done to or punishment inflicted on him or her or a relative of his or hers, or that the property of any of them will be damaged; (c) persistently follows that person; (d) hides any tools, clothes or other property owned or used by that person, or deprives him or her of them or hinders him or her in the use of them; (e) with one or more other persons, follows that person, in a disorderly manner, on a highway; (f) besets or watches the place where that person resides, works, carries on business or happens to be; or (g) blocks or obstructs a highway.
Definition of “property” 428. In this Part, “property” means real or personal corporeal property. R.S., c. C-34, s. 385.
Wilfully causing event to occur 429. (1) Every one who causes the occurrence of an event by doing an act or by omitting to do an act that it is his duty to do, knowing that the act or omission will probably cause the occurrence of the event and being reckless whether the event occurs or not, shall be deemed, for the purposes of this Part, wilfully to have caused the occurrence of the event. Colour of right (2) No person shall be convicted of an offence under sections 430 to 446 where he proves that he acted with legal justification or excuse and with colour of right. Interest (3) Where it is an offence to destroy or to damage anything, (a) the fact that a person has a partial interest in what is destroyed or damaged does not prevent him from being guilty of the offence if he caused the destruction or damage; and (b) the fact that a person has a total interest in what is destroyed or damaged does not prevent him from being guilty of the offence if he caused the destruction or damage with intent to defraud.
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R.S., c. C-34, s. 386.
Mischief Mischief 430. (1) Every one commits mischief who wilfully (a) destroys or damages property; (b) renders property dangerous, useless, inoperative or ineffective; (c) obstructs, interrupts or interferes with the lawful use, enjoyment or operation of property; or (d) obstructs, interrupts or interferes with any person in the lawful use, enjoyment or operation of property. R.S., c. C-34, s. 396.
Occupant injuring building 441. Every one who, wilfully and to the prejudice of a mortgagee or an owner, pulls down, demolishes or removes all or any part of a dwelling-house or other building of which he is in possession or occupation, or severs from the freehold any fixture fixed therein or thereto, is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years. R.S., c. C-34, s. 397.
Interfering with boundary lines 442. Every one who wilfully pulls down, defaces, alters or removes anything planted or set up as the boundary line or part of the boundary line of land is guilty of an offence punishable on summary conviction. R.S., c. C-34, s. 398.
Interfering with international boundary marks, etc. 443. (1) Every one who wilfully pulls down, defaces, alters or removes (a) a boundary mark lawfully placed to mark any international, provincial, county or municipal boundary, or (b) a boundary mark lawfully placed by a land surveyor to mark any limit, boundary or angle of a concession, range, lot or parcel of land, is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years. Saving provision (2) A land surveyor does not commit an offence under subsection (1) where, in his operations as a land surveyor, (a) he takes up, when necessary, a boundary mark mentioned in paragraph (1)(b) and carefully replaces it as it was before he took it up; or (b) he takes up a boundary mark mentioned in paragraph (1)(b) in the course of surveying for a highway or other work that, when completed, will make it impossible or impracticable for that boundary mark to occupy its original position, and he establishes a permanent record of the original position sufficient to permit that position to be ascertained. Nuisances
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Common nuisance 180. (1) Every one who commits a common nuisance and thereby (a) endangers the lives, safety or health of the public, or (b) causes physical injury to any person, is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years. Definition (2) For the purposes of this section, every one commits a common nuisance who does an unlawful act or fails to discharge a legal duty and thereby (a) endangers the lives, safety, health, property or comfort of the public; or (b) obstructs the public in the exercise or enjoyment of any right that is common to all the subjects of Her Majesty in Canada.
Ownership of Property Ownership 588. The real and personal property of which a person has, by law, the management, control or custody shall, for the purposes of an indictment or proceeding against any other person for an offence committed on or in respect of the property, be deemed to be the property of the person who has the management, control or custody of it. “document of title to lands” “document of title to lands” includes any writing that is or contains evidence of the title, or any part of the title, to real property or to any interest in real property, and any notarial or registrar’s copy thereof and any duplicate instrument, memorial, certificate or document authorized or required by any law in force in any part of Canada with respect to registration of titles that relates to title to real property or to any interest in real property;
Definition of “agent of the state” (4) For the purposes of this section, “agent of the state” means (a) a peace officer; and (b) a person acting under the authority of, or in cooperation with, a peace officer. “every one”, “person” and “owner”, and similar expressions, include Her Majesty and an organization; “municipality” “municipality” includes the corporation of a city, town, village, county, township, parish or other territorial or local division of a province, the inhabitants of which are incorporated or are entitled to hold property collectively for a public purpose; “organization” means (a) a public body, body corporate, society, company, firm, partnership, trade union or municipality, or (b) an association of persons that (i) is created for a common purpose, (ii) has an operational structure, and (iii) holds itself out to the public as an association of persons;
“peace officer” includes
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(a) a mayor, warden, reeve, sheriff, deputy sheriff, sheriff’s officer and justice of the peace, (b) a member of the Correctional Service of Canada who is designated as a peace officer pursuant to Part I of the Corrections and Conditional Release Act, and a warden, deputy warden, instructor, keeper, jailer, guard and any other officer or permanent employee of a prison other than a penitentiary as defined in Part I of the Corrections and Conditional Release Act, (c) a police officer, police constable, bailiff, constable, or other person employed for the preservation and maintenance of the public peace or for the service or execution of civil process, (d) an officer within the meaning of the Customs Act, the Excise Act or the Excise Act, 2001, or a person having the powers of such an officer, when performing any duty in the administration of any of those Acts, (d.1) an officer authorized under subsection 138(1) of the Immigration and Refugee Protection Act, (e) a person designated as a fishery guardian under the Fisheries Act when performing any duties or functions under that Act and a person designated as a fishery officer under the Fisheries Act when performing any duties or functions under that Act or the Coastal Fisheries Protection Act, (f) the pilot in command of an aircraft (i) registered in Canada under regulations made under the Aeronautics Act, or (ii) leased without crew and operated by a person who is qualified under regulations made under the Aeronautics Act to be registered as owner of an aircraft registered in Canada under those regulations, while the aircraft is in flight, and (g) officers and non-commissioned members of the Canadian Forces who are (i) appointed for the purposes of section 156 of the National Defence Act, or (ii) employed on duties that the Governor in Council, in regulations made under the National Defence Act for the purposes of this paragraph, has prescribed to be of such a kind as to necessitate that the officers and non-commissioned members performing them have the powers of peace officers; “property” “property” includes (a) real and personal property of every description and deeds and instruments relating to or evidencing the title or right to property, or giving a right to recover or receive money or goods, (b) property originally in the possession or under the control of any person, and any property into or for which it has been converted or exchanged and anything acquired at any time by the conversion or exchange, and (c) any postal card, postage stamp or other stamp issued or prepared for issue under the authority of Parliament or the legislature of a province for the payment to the Crown or a corporate body of any fee, rate or duty, whether or not it is in the possession of the Crown or of any person;
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ONTARIO REGULATION 322/12, made under the MUNICIPAL ACT, 2001, Made: October 23, 2012, Filed: October 25, 2012, Published on e-Laws: October 26, 2012, Printed in The Ontario Gazette: November 10, 2012 Amending O. Reg. 586/06 (LOCAL IMPROVEMENT CHARGES — PRIORITY LIEN STATUS) Note: Ontario Regulation 586/06 has previously been amended. For the legislative history of the Regulation, see the Table of Consolidated Regulations – Detailed Legislative History at www.e-Laws.gov.on.ca. 1. Ontario Regulation 586/06 is amended by adding the following heading before section 1: PART I GENERAL 2. (1) Subsection 1 (1) of the Regulation is amended by adding the following definitions: “private” means, with respect to a work or property, a work or property that is not owned by the municipality or a local board of the municipality; . . . . . “sufficient agreement” means an agreement determined to be sufficient under section 36.4; (2) Clause 1 (2) (b) of the Regulation is amended by striking out “or distribution of water” and substituting “distribution or conservation of water”. (3) Subsection 1 (2) of the Regulation is amended by striking out “and” at the end of clause (o), by adding “and” at the end of clause (p) and by adding the following clause: (q) constructing energy efficiency works or renewable energy works.
(4) Section 1 of the Regulation is amended by adding the following subsection: (3) If a municipality undertakes a work as a local improvement, a special charge imposed with respect to the work in accordance with this Regulation has priority lien status as described in section 1 of the Act.
3. Section 2 of the Regulation is revoked and the following substituted: Scope of local improvement 2. (1) If a municipality has the authority to undertake a work, including a private work, under section 9, 10 or 11 of the Act or under any other provision of any Act, the municipality may undertake the work as a local improvement in accordance with this Regulation. (2) The power to undertake a work as a local improvement includes, without limitation, the power to, (a) undertake the work as a local improvement, including undertaking the work on private property; (b) acquire an existing work and where it does, this Regulation applies as if the municipality were undertaking the work so acquired; (c) undertake a work as a local improvement for the benefit of a single lot; and (d) raise the cost of undertaking a work as a local improvement by imposing special charges, including special charges on a single lot.
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(3) Where a municipality undertakes a private work as a local improvement, this Regulation applies to undertaking the private work as a local improvement as if the municipality were undertaking its own work. (4) Nothing in this Regulation authorizes a municipality to enter and undertake a work as a local improvement on private property without the permission of the owner or other person having the authority to grant such permission.
4. Subsection 4 (2) of the Regulation is amended by striking out the portion before clause (a) and substituting the following: (2) A notice to an owner under this Regulation is sufficiently given if it is, 5. The Regulation is amended by adding the following heading before section 5: PART II IMPOSITION AND APPORTIONMENT OF THE COSTS OF LOCAL IMPROVEMENTS ON THE BASIS OF FRONTAGE 6. Paragraph 2 of subsection 12 (2) of the Regulation is revoked and the following substituted: 2. Reasonable administrative costs, including the cost of advertising and of giving notices. 7. The Regulation is amended by adding the following Part: PART III LOCAL IMPROVEMENTS ON PRIVATE PROPERTY BY AGREEMENT Purpose, Sufficient Agreements and By-Laws Local improvements, private property 36.1 In accordance with this Part, a municipality may raise the cost of undertaking works as local improvements on private property by imposing special charges on the lots of consenting property owners upon which all or part of the works are or will be located. Local improvements by agreement 36.2 (1) This Part applies to a municipality undertaking work as a local improvement on private property if, (a) the municipality and the owners of the lots which would be specially charged to raise all or any portion of the cost of the work enter into a sufficient agreement in which the owners consent to their lots being specially charged; and (b) the municipality is not undertaking the work in accordance with Part II. (2) An agreement described in subsection (1) may provide for the apportionment of the cost of the work among the specially charged lots on any basis that the municipality considers appropriate, but the method of apportionment must be authorized under Part XII of the Act. (3) Despite subsection (2), the method of apportionment provided for in an agreement described in subsection (1) shall not result in special charges that are based on, are in respect of or are computed by reference to the assessment of the specially charged lots as shown on the assessment roll for any year under the Assessment Act. (4) An agreement described in subsection (1) shall be signed by the municipality and the owners of all the lots which would be specially charged, if the municipality undertakes the work as a local improvement in accordance with this Part. (5) The agreement signed by the municipality and the owners of all the lots which would be specially charged must include, (a) the estimated cost of the work;
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(b) the estimated lifetime of the work; (c) a description of the apportionment method and the amount of the special charges for the lots to be specially charged; (d) without limiting clause (c), the manner in which a cost over run or under run is to be dealt with, if the actual cost of work differs from the estimated cost of the work; and (e) when the special charges for the lots are to be paid. Cost of a work 36.3 The following may be included in the cost of a work under this Part: 1. Engineering expenses. 2. Reasonable administrative costs, including the cost of advertising and of giving notices. 3. Interest on short and long-term borrowing. 4. Compensation for lands taken for the purposes of the work or injuriously affected by it and the expenses incurred by the municipality in connection with determining the compensation. 5. The estimated cost of incurring long-term debt, including any discount allowed to the purchasers of the debt. Sufficient agreement 36.4 (1) An agreement described in section 36.2 is sufficient if it meets the requirements of section 36.2 and of this section. (2) The clerk of the municipality shall determine the sufficiency of an agreement and, where it is sufficient, the clerk shall certify the agreement. (3) The clerk’s certification of the agreement as sufficient is final and binding. (4) A person who has signed an agreement may withdraw his or her name from the agreement by filing a written withdrawal with the clerk, before the clerk has certified the sufficiency of the agreement but the person cannot withdraw his or her name from the agreement after the clerk has certified the sufficiency of the agreement. (5) In determining the sufficiency of an agreement, where a lot is owned by two or more persons, the owner of the lot is deemed not to have signed the agreement unless all of the owners of the lot have signed the agreement. Local improvement charges by-law 36.5 (1) If the municipality has the authority to undertake a work, it may, in accordance with this Part, pass a by-law to undertake the work as a local improvement for the purpose of raising all or any part of the cost of the work by imposing special charges on lots upon which all or some part of the local improvement is or will be located. (2) A by-law under subsection (1) may be a by-law to authorize the undertaking of a specific work for which the municipality has given notice under clause 36.6 (2) (a) or a by-law to authorize the undertaking of works which satisfy the requirements of a municipal program for which the municipality has given notice under clause 36.6 (2) (b). Notice of local improvement charges by-law 36.6 (1) Before passing a by-law to undertake a work as a local improvement under section 36.5, the municipality shall give notice to the public of its intention to pass the by-law. (2) The public notice of the intention to pass the by-law shall include, (a) a description of a specific work the municipality intends to undertake; or
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(b) a description of a program that the municipality has or intends to establish to undertake the types of works set out in the notice. Clarification 36.7 A municipality may undertake a work as a local improvement under this Part in accordance with a sufficient agreement despite receiving a petition under subsection 7 (1) against undertaking the work as a local improvement under Part II within the previous two years. Application of ss. 31-36 36.8 Sections 31 to 36 apply, with necessary modifications, for the purpose of a municipality undertaking a work as a local improvement under this Part. Non-application of exemption 36.9 If an Act, regulation or by-law provides that special charges under this Regulation are not required to be paid with respect to a lot, despite the exemption, the lot is subject to this Part for all purposes and shall be specially charged. Procedure for Imposing Special Charges Local improvement roll 36.10 Before a special charge is imposed, the treasurer of the municipality shall prepare a local improvement roll setting out, (a) the cost of the work; (b) every lot to be specially charged and the name of the owner of each lot; (c) the special charges with which each lot is to be specially charged; (d) when the special charges are to be paid; and (e) the lifetime of the work. Notice and certification of proposed roll 36.11 (1) Before a special charge is imposed, the municipality shall give notice of the proposed local improvement roll that is prepared to the owners of lots liable to be specially charged. (2) The treasurer shall certify the proposed local improvement roll after, (a) considering objections to the roll received from the owners, if any; (b) considering proposed revisions to the roll received from the municipality, if any; and (c) making any corrections to the roll that the treasurer considers fair and equitable as a result of the objections and proposed revisions. Public access to local improvement roll 36.12 Copies of the proposed local improvement roll shall be available for inspection at the office of the clerk of the municipality until the treasurer of the municipality has certified the local improvement roll. Effect of certification of local improvement roll 36.13 When certified by the treasurer under subsection 36.11 (2) or section 36.15, (a) the certified local improvement roll and the special charges set out in it are final and binding, except where otherwise provided in this Regulation; and (b) the work in respect of which the roll has been prepared and certified is conclusively deemed to have been lawfully undertaken in accordance with this Regulation. Special charges by-law 36.14 (1) After the treasurer of the municipality has certified the local improvement roll under subsection 36.11 (2) or section 36.15, the municipality shall by by-law provide that, (a) the amount specially charged on each lot set out in the roll is sufficient to raise that lot’s share of the cost by a specified number of annual payments; and
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(b) a special charge is imposed in each year on each lot equal to the amount of the payment payable in that year. (2) The amount of each annual payment shall be entered in the local improvement roll by the treasurer. (3) The annual payments with respect to a work shall not extend beyond its lifetime. Amendments to local improvement roll 36.15 The treasurer of the municipality shall make any corrections in the local improvement roll that are necessary to give effect to changes made in accordance with sections 36.16 and 36.17 and shall certify the corrected roll. Apportioning special charges if lot subdivided 36.16 (1) If a lot that is or is to be specially charged is subdivided into two or more new lots, the municipality shall apportion the amount of special charges that would have otherwise been charged on the original lot among the new lots by imposing special charges. (2) The apportionment of the amount of special charges among the new lots shall be done as follows: 1. If the sufficient agreement provides for a specified method of apportioning special charges among the new lots when an original lot is subdivided, the municipality shall apportion the amount among the new lots in accordance with the specified method of apportioning special charges. 2. If the sufficient agreement does not provide for a specified method of apportioning special charges among the new lots when an original lot is subdivided, the municipality may apportion the amount in any manner the municipality considers just and equitable, having regard to the relative degree of benefit received by each of the new lots. Reduction or increase in special charge due to gross error 36.17 (1) The treasurer shall, at any time after the certification of the local improvement roll, reduce or increase any special charge for the current year and the remaining years for which the special charge is imposed if the treasurer determines that the special charge is incorrect by reason of any gross or manifest error. (2) Before reducing or increasing a special charge, the municipality shall give notice of the proposed reduction or increase to the owners of the lots specially charged for the work and to which the reduction or increase applies. (3) By filing an objection with the clerk, a person may object to the reduction or increase to the special charge on the grounds that the reduction or increase is incorrect or not warranted. (4) The treasurer shall consider the objection and may make any decision the treasurer considers fair and equitable. (5) Where there is a reduction in the special charge, the amount of the reduction shall be borne by the municipality. (6) Where there is an increase in the special charge, the amount of the increase shall be applied towards payment of the special charges imposed to raise the owners’ share of the cost of the work. Proportion of municipality’s and owner’s share cannot be changed 36.18 The treasurer shall not change the proportion of the municipality’s and the owners’ share of the cost, except to the extent that the proportion may be affected by a decision made under section 36.11 or 36.17.
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8. The heading before section 37 of the Regulation is revoked and the following substituted: PART IV TRANSITIONAL PROVISIONS Commencement 9. This Regulation comes into force on the day it is filed. Made by: Kathleen O’Day Wynne Minister of Municipal Affairs and Housing Date made: October 23, 2012.
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Fig. 1
STRATEGIC DIRECTIONS FOR MANAGEMENT OF ONTARIO CROWN LAND PL 1.01.01, Compiled by – Branch, Lands & Natural Heritage Section, Lands & Waters, Date Issued February 1993. 2.2 WHAT IS CROWN LAND? Crown Land, for the purpose of this document, is defined as those areas of Ontario over which MNR has stewardship responsibility under the authority of the Public Lands Act. These lands make up 87 percent of the province, over 937,000 km2, including 164,000 km2 under water. The value of this Crown Land asset has been estimated at $22 billion. http://www.mnr.gov.on.ca/stdprodconsume/groups/lr/@mnr/@crownland/documents/do cument/mnr_e000072.pdf, as of August 21, 2012.
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Bios:
Tom Black – President, Ontario Landowners Association Algonquin College – Electronic Technology Current – Full Time Farmer Email – [email protected] Phone – 1-877-258-6108 or 1-613-831-2642
Jeff Bogearts – Vice President, Ontario Landowners Association Ontario Police College Toronto Police College CSC College – Computer Studies Current – Vice President of Business Development 20-12 Electronic Recycling at tter.ca Email – [email protected] Phone – 1-613-284-2424
Elizabeth Marshall – Director of Research, Ontario Landowners Association http://ontariolandowners.ca/ Director – Canadian Justice Review http://www.canadianjusticereviewboard.ca/NEWSROOM.HTM Associate Research Fellow – Meighen Institute for Public Affairs http://www.meigheninstitute.org/index.php/team
Presently OLA information is being used at the University of Guelph. The OLA has done various radio talk shows and have been guest speakers throughout Ontario and Quebec.
The OLA have produced the following reports:
MPAC: Its Creation and Its Conflicts, May, 2011© Response to the Ontario Bar Association: “Back Off Government: What Municipal Lawyers Need to Know about Crown Patents”, July, 2011 © Why Complete Title Searches and Supporting Documents are Imperative, January 2012 © TERANET/POLARIS: The Problems, the History and the Present, January 2012 © Conservation Authorities: Legislation Out of Control, March 16, 2012 © Mackie v. Niagara Escarpment Commission: Where Justice has Gone Wrong, June 2012 © Tree Cutting By-Laws: What Municipal Councils Need to Know, October 2012 © Property Standard By-Laws: What Municipal Councils Need to Know, November 2012© Official Plans: What Municipal Councils Need to Know, December 2012© The OSPCA Act: Hidden Denied Oversight. January 2013 © The Municipal Councillor’s Guide: Making Ontario a Better Place to Grow, Information Seminar, 2013 ©
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