The following information has come to RAHB and may be of interest to members. Please note that the opinions of the author are not necessarily those held by RAHB, its Board of Directors or staff.
Dear Editor:
There seems to be a theme with provincial legislation lately and it has to do with trails. Recently we found out about Bill 118 and now there is Bill 100, which has been voted on once and is moving forward through government procedure. Both of these Bills remove and/or undermine private property rights.
Bill 100 leads the private property owner into thinking they can allow things like snowmobile trails, atv trails, hiking trails, etc., across their property and yet retain the right to shut those trails down, if they want or need to. They will not be able to, if Bill 100 is passed.
What are the main points of Bill 100? Bill 100 short titled Supporting Ontario’s Trails Act, 2015, includes 3 sections and 6 Schedules. Schedule 1 is the Ontario Trails Act, 2015, and has 16 sections.
This Act is by the Minister of Tourism and the Bill states the purposes of this Act are: to encourage the use of trails, to enhance trail experience, to protect trails, and to recognize trails.
Nothing in this Act is for the protection of the private property owner, and would seem to mislead the private property owner into entering into agreements where an easement would be registered against the title of the private property. This easement cannot be removed by the private property owner; it can only be removed by an “eligible body”, which under this Act is a “nominee.”
A “nominee” seems a very unusual term, and the reasoning for this term could seem quite the trick. When an “eligible body” approaches a private property owner about allowing a trail to cross their land, if the owner of the land agrees, then the owner is the one actually asking this “eligible body” to put an easement against the owner’s title. Unknowingly the private property owner has just turned over his rights to the eligible body, and because of this Act that eligible body can now go and register an easement against the title of the property.
“Eligible bodies” include, exerpt right from the Act: The Crown in right of Canada or Ontario, including an agency, board or commission of the Crown that can hold an interest in land: an aboriginal band (within the meaning of the Indian Act of Canada), community or organization prescribed under this Act: a municipality: a conservation authority: a board under the Education Act: an incorporated registered charity under the Canada Corporations Act: a trustee of a charitable foundation and/or a donnee registered under the Income Tax Act: a qualified organization, under section 170 (h) Internal Revenue Code (United States)[(3)Future interests in tangible personal property… For purposes of the preceding sentence, a fixture which is intended to be severed from the real property shall be treated as tangible personal property.], etc.,: any other person or body prescribed under this Act.
Also, if a private property owner did allow an easement, that easement can be transferred from the eligible body, you have entered into an agreement with, to any of the other “eligible bodies” on that list, and you wouldn’t even know. So, in good faith, you enter into an agreement with the local snowmobile club and the next thing you know a municipality or conservation authority has an easement against your property. Is that what a private property owner wanted? No, but that’s what this Bill can do.
This Bill could also be a detriment to those who have had a really good working relationship with private property owners, because if a private property owner feels they are going to have an easement registered against their property that they haven’t any control over, or can’t remove, why would anyone allow any association, federation, or organization the privilege of putting a trail across their property. I know I wouldn’t, so this Bill does just the complete opposite of what its purpose is, to promote trails.
Bill 100 needs to die on the floor of Queen’s Park for the protection of everyone’s private property rights.
Elizabeth Marshall,
Director of Research Ontario Landowners Association, President All Rights Research Ltd., Director Canadian Justice Review Board
NOTE:
Don Johnson (Right at Home Realty Inc.) will be speaking on this topic at a Knowledge Pod at REALTOR® CONNECTIONS on March 23.