MUNICIPALITIES UNLAWFUL CONTROL OF PRIVATE PROPERTY IN ONTARIO
by Jeff Sherk
NOTICE: I am not a lawyer or a paralegal, and this is not legal advice. This document is for informational purposes only.
MUNICIPALITIES HAVE NO POWER OR AUTHORITY ON PRIVATE PROPERTY
The legal maxim expressio unius est exclusio alterius means that within a statute or regulation, when one or more things of a class are expressly mentioned, others of the same class are excluded. To say it another way, the inclusion of one thing means the exclusion of everything else.
Ontario Municipal Act Regulation 586/06 has specific exclusions of private property.
Section 2(4) says “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.”
Section 36.1 says “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.“
Notice that the Municipal Corporation needs permission/consent from the private property owner, without which they have no authority.
The Ontario Municipal Act itself has specific inclusions of public property owned by the Municipal Corporation and specific exclusions of services/things it does not own.
Sections 10(2)4 & 11(2)4 says the Municipal Corporation may pass by-laws respecting “Public assets of the municipality acquired for the purpose of exercising its authority under this or any other Act.”
Sections 10(4) & 11(6) says the Municipal Corporation does not have “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.”
Section 8(1) says that the Municipal Corporations scope of power is there so it can “govern its affairs.” The word “its” is a possessive pronoun, meaning you have the power to govern the affairs that belong to the Municipal Corporation only.
Notice that you only have authority over public assets that you own, you have no authority over services/things that you are not providing, and your scope of power is for governing your own affairs only.
Within the above Act and Regulation, we see that public property is specifically included and private property is specifically excluded from the Municipal Corporations control. Private property is NEVER included anywhere, and therefore the maxim of expressio unius est exclusio alterius applies. The Municipal Corporations power, authority and control is limited only to public property it owns, and not to private property.
This maxim can further be confirmed by another section of the Ontario Municipal Act.
Section 9 says “(Powers of a natural person) 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.”
Section 5(3) says “(Powers exercised by by-law) 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.“
Section 9 states the Municipal Corporation has the capacity, rights, powers and privileges of a natural person. A natural person has no authority on private property they do not own, and therefore a Municipal Corporation cannot indirectly give itself authority that it never directly had in the first place. Municipal Corporation powers exercised under by-laws therefore have no power, no authority and no control over private property which the Municipal Corporation does not own.
The Municipal Corporation cannot give itself more power or authority than what was granted by statute from the Province. And the Province cannot grant power or authority to the Municipal Corporation over something that it does not have to give. Therefore the Municipal Corporation has no power, authority or control over private property it does not own.
Ontario (Attorney General) v. Rowntree Beach Assn., 1994 CanLII 7228 (ON SC)
“Her Majesty the Queen in right of Ontario has no right, title or interest in and to the lands described …“
The Great West Saddlery Company Limited and others v. The King  UKPC 27,  AC 91 (25 February 1921), Privy Council (on appeal from Canada)
At page 100 it says “What cannot be done directly cannot be done indirectly.“
R. v. Greenbaum,  1 SCR 674, 1993 CanLII 166 (SCC)
“Municipalities are entirely the creatures of provincial statutes and can therefore exercise only those powers which are explicitly conferred on them by provincial statute. A court should look to the purpose and wording of the provincial enabling legislation when deciding whether or not a municipality has been empowered to pass a certain by-law. The by-laws themselves are to be read to fit within the parameters of the empowering provincial statute where they are susceptible to more than one interpretation. Courts must be vigilant, however, in ensuring that municipalities do not impinge upon the civil or common law rights of citizens in passing ultra vires by-laws.“
Noble v. Township of Brantford 1963, 2 OR 393-401, Ontario High Court of Justice
“The first and most obvious limitation is found in the limitations imposed upon the power of the Province itself by the B.N.A. Act. The Province has not itself universal power of legislation, and its creature the municipality can have no higher power.“
Attorney General for British Columbia and Minister of Lands v. Brooks-Bidlake and Whitall Ltd 63 SCR 466 1922
Judge Idington confirms “… the right of an owner to deal with the lands belonging to him or it, as to such owner may seem fit …“
O’Donohue v. Canada, 2003 CanLII 41404 (ON SCCOURT FILE NO.: 01-CV-217147CM DATE: 20030626
“ … It is well settled that the Charter cannot be used to amend or trump another part of our constitution …”
MUNICIPAL BY-LAWS ARE ULTRA-VIRES ON PRIVATE PROPERTY
Municipal by-laws are ultra-vires (of no force or effect) if they conflict with or frustrate the purpose of a provincial or federal Act/regulation or an instrument of legislative nature. From the Ontario Municipal Act we have the following:
Section 14(1) says “(Conflict between by-law and statutes, etc.) 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.”
Section 14(2) says “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.”
A municipal by-law cannot frustrate the purpose of a Federal/Provincial statute/law or an instrument of legislative nature, otherwise the by-law is ultra-vires (meaning it is of no force or effect).
CONFLICT WITH CROWN LAND PATENT GRANT
A Crown Land Patent Grant was the Crown (Federal/Provincial/Municipal government) giving up their right, title and interest in a piece of land to an individual or corporation. It then became private property, no longer under the authority or control or power of the Crown. Most of these grants include the wording “heirs and assigns forever” meaning it can be passed down from generation to generation without the Crown ever being able to interfere with those private property rights again.
Since “forever” has not come yet, any Municipal Corporation by-law allowing entry onto private property or trying to exercise power, authority or control over private property would frustrate the purpose of the Crown Land Patent Grant, making it ultra-vires.
CONFLICT WITH COMMON LAW TORT OF INVASION OF PRIVACY
In Jones v. Tsige, 2012 ONCA 32, Judge Sharpe of the Ontario Court of Appeal confirms that the Common Law Tort of Invasion of Privacy (Intrusion Upon Seclusion Or Solitude) includes:
– one who intentionally intrudes, physically or otherwise, upon the seclusion of another or his private affairs or concerns, and
– physical intrusions into private places as well as listening or looking, with or without mechanical aids, into the plaintiff’s private affairs.
Any Municipal Corporation by-law allowing entry onto private property or trying to exercise power, authority or control over private property would frustrate the purpose of this Common Law Tort, making it ultra-vires.
CONFLICT WITH CRIMINAL CODE OF CANADA
Section 72 (Forcible Entry and Detainer) of the Criminal Code of Canada prevents anybody from entering property where it can lead to a beach of peace. Section 180 (Common Nuisance) of the Criminal Code of Canada prevents anybody from obstructing a person from exercising or enjoyment of their rights. Section 430 (Mischief) of the Criminal Code of Canada prevents anybody from obstructing a person from the lawful use, enjoyment or operation of their property.
Any Municipal Corporation by-law allowing entry onto private property or trying to exercise power, authority or control over private property would frustrate the purpose of these Criminal Code sections, making it ultra-vires.
CONFLICT WITH ONTARIO TRESPASS TO PROPERTY ACT
Section 3 of the Ontario Trespass to Property Act states that entry on to a premises can be prohibited by notice given orally, in writing or by clearly posted signs. And Section 2 states that any person who enters on the premises without the express permission of the occupier is committing the offence of Trespass.
Any Municipal Corporation by-law allowing entry onto private property would frustrate the purpose of this Act, making it ultra-vires.
Ontario (Attorney General) v. Rowntree Beach Assn., 1994 CanLII 7228 (ON SC)
“Her Majesty the Queen in right of Ontario has no right, title or interest in and to the lands described …”
Mercer v. Attorney General of Ontario, 1883, 8 AC 767, Privy Council
“… 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.”
1960 CANADIAN BILL OF RIGHTS
Section 1(a) says “It is hereby recognized and declared that in Canada there have existed and shall continue to exist … the following human rights and fundamental freedoms … the right of the individual to life, liberty, security of the person and enjoyment of property.”
Ontario Property and Civil Rights Act
“Rule of decision 1. In all matters of controversy relative to property and civil rights, resort shall be had to the laws of England as they stood on the 15th day of October, 1792, as the rule for the decision of the same, and all matters relative to testimony and legal proof in the investigation of fact and the forms thereof in the courts of Ontario shall be regulated by the rules of evidence established in England, as they existed on that day …”
Attorney General v. De Keyser’s Royal Hotel, Ltd., May 10, 1920
“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.” … “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.”
Cook’s Road Maintenance Assoc. v. Crowhill Estates, 2001 CanLII 24149 (ON CA)
“ … it is necessary to be mindful of the fact that Cook’s Road is situated on private land. It is privately owned by the appellant. To declare a private road to be a public road will extinguish the property rights of its owner. It is a very serious step, therefore, for a court to declare an individual’s private property to be public property. Property rights are to be respected.”
Lynch v St. John’s (City), 2016 NLCA 35 (CanLII)
“ … Having the property rights flowing from a Crown grant, with virtually unrestricted rights to build and to appropriate and use groundwater, transformed to merely a right to keep the land ‘unused in its natural state,’ results in virtually all of the aggregated incidents of ownership being taken away. All of the reasonable uses of the property were taken away and a compulsory taking, a de facto or constructive expropriation, resulted.”
Trustees of Dartmouth College v. Woodward, 4 Wheat. 518 (1819)
“If the legislature mean to claim such an authority, it must be reserved in the grant.”
William Cooper v . The Honourable Alexander Stuart (Colonial Secretary), from the Supreme Court of New South Wales; delivered 3rd April 1889
“[The Crown’s] 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.”
PROVINCIAL STATUTES/REGULATIONS ARE ULTRA-VIRES ON PRIVATE PROPERTY
Looking at the caselaw from the above section, you will notice that these all apply to Provincial Legislation as well. The Crown/Province has no right, title or interest in private property it does not own. Private property does not belong to the Crown/Province. Private property is protected from the prerogative of the Crown/Province. Private property rights are to be respected by the Crown/Province. Any power, authority or control the Crown/Province claims to have over private property must have been reserved in Crown Grant Land Patent.
Also the doctrine of federal paramountcy applies to any provincial law that would frustrate the purpose of the federal law, meaning any conflict between Federal and Provincial Legislation renders the Provincial Legislation ultra-vires (of no force or effect).
Canadian Western Bank v. Alberta,  2 SCR 3
“To sum up, the onus is on the party relying on the doctrine of federal paramountcy to demonstrate that the federal and provincial laws are in fact incompatible by establishing either that it is impossible to comply with both laws or that to apply the provincial law would frustrate the purpose of the federal law.”
Reference re Upper Churchill Water Rights Reversion Act,  1 SCR 297
“Where, however, the pith and substance of the provincial enactment is the derogation from or elimination of extraprovincial rights then, even if it is cloaked in the proper constitutional form, it will be ultra vires. A colourable attempt to preserve the appearance of constitutionality in order to conceal an unconstitutional objective will not save the legislation.”
Georgian Bluffs (Township) v. Moyer, 2012 ONCA 700, DOCKET: C53734
“ 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.”
R. v. Soules, 2011 ONCA 429 (CanLII) par
“ Use immunity created by a provincial statute cannot extend to proceedings under the Criminal Code, because it would be ultra vires the province to restrict the admissibility of evidence in criminal matters: White, at para. 35. As Iacobucci J. explains further, in para. 72, the purpose of this type of provincial legislation is not to assist the police in the investigation of specific crimes; rather, ‘[t]he provinces are entitled to inquire into factual circumstances that may involve the commission of a criminal offence, but their jurisdiction does not extend so far as to trench upon the federal power under s. 91(27) of the Constitution Act, 1867 over the criminal law.’ ”
WHAT IS CONSIDERED “IN” THE MUNICIPALITY
The various levels of government are simply corporations, so anything which is “IN” the government must belong to the government as property of that specific corporation. As stated in Mercer case below, privately owned property is not “IN” the province, is not “IN” the federal government, and is not “IN” the municipalities as part of these entities’ administrative property.
Judge Gwynne in Mercer v. Attorney General for Ontario, (1881) 5 S.C.R. 538 at page 706 says “the term ‘public lands’ in the province, which is but an equivalent expression to ‘lands belonging to the provinces at the Union’ ” and at page 707 says “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“.
For example purposes below, I will use the fictional names of ABC Township, the Corporation of the Township of ABC, and the City of XYZ. This example also applies to Provincial Corporations and Federal Corporations as well as Municipal Corporations.
There seems to be a lack of understanding and a lack of distinction between the geographic area we call ABC Township and the Municipal Corporation itself we call the Corporation of the Township of ABC. The staff and council do not get paid from a geographic area. They get paid from a corporation. A geographic area cannot own land or assets. A geographic area cannot own a corporation. A geographic area cannot control or define a corporation. A geographic area cannot pass corporate by-laws. A corporation can own land and other assets, and the land and assets that the corporation owns are considered to be “IN” the corporation. A corporation can own land and physical assets but cannot be defined by a geographic limit or any other kind of physical limit since it is a fictitious entity.
When council passes a by-law, it is a corporate by-law and can only affect the corporation and what is “IN” the corporation. The top of every by-law even says “CORPORATION OF THE TOWNSHIP OF ABC” proving that they are specific to the corporation and do not apply to a geographic area that is not owned by that corporation.
These corporate by-laws have no authority over geographic areas that are not owned by the corporation. My private property may be within the geographic area we call ABC Township, but my private property is not “IN” the Corporation of the Township of ABC because it is not owned by the Corporation of the Township of ABC and therefore its corporate by-laws do not apply to my private property.
EXAMPLE: The Corporation of the Township of ABC owns some vehicles. These vehicles are not owned by the geographic area we call ABC Township. When one of those vehicles is used by staff, and driven to a different geographic area (say the City of XYZ), the vehicle is no longer in the geographic area we call the ABC Township, but it is still owned by the Corporation of the Township of ABC and is therefore still “IN” the Corporation and is still subject to the by-laws of the Corporation of the Township of ABC. The geographic location of the vehicle is irrelevant, for as long as it is owned by the Corporation of the Township of ABC, it is always “IN” the Corporation. The corporate limits of the Corporations authority are irrelevant of geographic location, as they still have authority over anything that is “IN” the Corporation regardless of its geographic location.
LIABILITY OF COUNCIL AND EMPLOYEES
I would like to remind you that the Municipal Corporations council, officers, employees and its agents can be held liable for any torts that they commit.
Section 448 of Municipal Act says “(Liability for torts) 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.“
And here is an excerpt from the Ministry of Municipal Affairs 2014 Municipal Councillor’s Guide on legal considerations on exercising power.
THE 2014 MUNICIPAL COUNCILLOR’S GUIDE
published by MINISTRY OF MUNICIPAL AFFAIRS AND HOUSING
LEGAL CONSIDERATIONS ON EXERCISING POWER
Because municipalities are provincial creations, generally they only do what they have been authorized to do by the provincial government. A number of general consequences follow from this:
– a provincial government would give a municipality only those powers that it may exercise itself within the Constitution’s division of federal and provincial powers;
– generally, a municipal bylaw may not override a conflicting provincial statute. A bylaw that was valid when passed may become invalid if an overriding provincial statute is later put in place; and
– if a municipality takes action for which it does not have statutory authority, or that exceeds the limits of its authority, the courts could quash the action as being ‘ultra vires’, that is, beyond the powers of the municipality.
A Municipal Corporation has no power, authority or control over my private property due to the legal maxim expressio unius est exclusio alterius meaning the Ontario Municipal Act specifically grants power, authority and control only to property owned by a Municipal Corporation, and does not grant any power, authority or control over private property.
Any Municipal Corporation by-law or Provincial Legislation attempting to directly or indirectly grant power, authority or control over my private property is ultra-vires as it frustrates the purpose of my Crown Land Patent Grant, the Criminal Code of Canada, and the Common Law.
Any Municipal Corporation by-law attempting to directly or indirectly grant access to my private property is ultra-vires as it frustrates the purpose of the Ontario Trespass to Property Act.
My private property, regardless of its geographic location, is not owned by a Municipal Corporation or by a Provincial Corporation and is therefore not “IN” a Municipal Corporation and is not “IN” a Provincial Corporation and is therefore not subject to any by-laws created by a Municipal Corporation and is also not subject to any Provincial Legislation.