Snowmobiling lawyer suggests OLA is “spreading unwarranted paranoia”
To the Expositor:
Re: Ontario landowners stick to their guns on interpretation of Bill 100 (March 9, 2016)
On behalf of the Manitoulin Snowdusters, I would like to offer some comments on the letter to the editor submitted by Elizabeth Marshall, director of research for the Ontario Landowners’ Association (OLA), in the March 9, 2016 edition of The Expositor.
Referring to various trail organizations that make up the Ontario Trails Council, Ms. Marshall questions “how unbiased their opinion is.” I would say ditto for the OLA. They can hardly be considered an objective onlooker in this dispute over the proposed Ontario Trails Act, 2015 (aka Bill 100). On the contrary, they have a clear axe to grind in all of this.
She does not give the case cite, but Ms. Marshall quotes from a Supreme Court of Canada decision using the catch phrase, “A verbal agreement which has been partly performed will be enforced.” I assume she is referring to the case of Hill v. Nova Scotia (Attorney General) 1997, S.C.R 69. Unfortunately for the OLA, this case hardly bolsters their argument about the dangers of Bill 100. It does not even deal with trails, but rather involved a situation like the old Joni Mitchell song, “they were puttin’ through a four lane highway…” The Hill case was a dispute where the Trans Canada Highway had been built through the middle of somebody’s farm down in Nova Scotia. It was more in the nature of an expropriation case than anything else, and is not helpful in this discussion.
Perhaps the most dangerous conclusion Ms. Marshall arrives at from that Supreme Court decision is her assertion that, “Therefore a verbal agreement can and is an easement as it creates an interest for some other party.” That is simply not the case—certainly not from a legal point of view. Unfortunately, this misbegotten belief that a third party (or “eligible body” as referred to in the draft bill) can surreptitiously sneak in during the dark of night, and unilaterally register an easement against a landowner’s property, has become the universal bogeyman of the OLA, and others. I would almost go as far as to say that the OLA is spreading unfounded paranoia.
Unfortunately Bill 100, in its current draft form, does not define “easement” in the definitions section at the beginning of the proposed act. Not to bore the reader with a lot of legal mumbo-jumbo, but you would therefore have to fall back on what the term “easement” is, as defined or understood in the three governing statutes involving land registration here in the province of Ontario, namely the Land Titles Act RS.O 1990. The Registry Act RS.O. 1990, and the Electronic Registration Act, S.O. 1991.
To that I would add a fourth statute, namely The Planning Act, RS.O. 1990, because it is arguably the most important protection from a landowner’s point of view—at least in guarding against the unilateral registration of an easement on title to the owner’s property.
Under the Planning Act, no new easement can be created or registered on title to a parcel of land without first going to the local planning authority—in our case the Manitoulin Planning Board—to get a “consent” for the creation of an easement. This involves roughly the same procedure as if you were requesting a severance from the original lot, to create a new second parcel of land.
Moreover, the Manitoulin Planning Board will not grant an easement until the limited area of the parcel that involves the easement, is surveyed out on a new Reference Plan of Survey that in tum gets registered at the Land Titles Office. It is this new survey that gives the easement its precise legal description vis a vis the parcel of land as a whole, and puts the easement into registrable form such that it is accepted at the Land Titles Office for registration.
Most importantly, when the survey has been finished, and when the Manitoulin Planning Board has given its Consent, the process is then completed by way of a Transfer of Easement document (much like a Deed) signed by the landowner and the third party in whose favour the easement is being created, which only then can be registered on title.
This has been the law— and the required method of procedure— or almost 50 years now. The idea that a third party can sneak in and somehow register an easement without the landowner knowing it is preposterous.
Where does this all leave the sport of organized snowmobiling in the province of Ontario? The proposed new Act (Bill 100) neither impacts nor outlaws the existing method used by the OFSC, and its affiliated clubs, for the past 30 years or more—namely that of having the parties enter into a land use permission agreement. The OFSC proposes to go on using the land use permission system, rather than resorting to the more cumbersome one of trying to negotiate and register easements against landowners’ property.
Very important, the public should know that snowmobile clubs operate on written permission forms, not verbal agreements or handshake deals. To use lawyer’s jingo, there is “an exchange of valuable consideration.” The landowner allows the use of their land, in exchange for liability insurance coverage provided to him/her free of charge through the OFSC’s insurance company.
The other underpinning of the system now in place that sits so well with the landowners, is that the land use permission can be withdrawn at will by them on short notice while they still own the land. Moreover, it stops automatically when the property changes hands, and has to be renegotiated with the new proprietors.
The current system has worked well for landowners and snowmobile clubs across Ontario for the past number of years. Bill 100 does not change anything, so we intend to go on using it.
Brad Middleton
Barrister and Solicitor
Evansville
