From: Mark Early <[email protected]> Sent: Wednesday, April 23, 2014 1:59 PM To: Jackie Pherrill (Mono) Subject: FW: Planning Ontario the History and the Intent Attachments: PLANNING ONTARIO THE HISTORY AND THE INTENT.pdf 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. Planning Ontario: The History and the Intent. © March, 2014 OLA Page 1 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 Planning Ontario: The History and the Intent. © March, 2014 OLA Page 2 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.