HomeMy WebLinkAboutCD-64-84 wsom^KUOLE..:.nNO n CORPORATION OF THE TOWN OF NEWCASTLE
OFFICE OF THE TOWN CLERIC
40 TEMPERANCE STREET TELEPHONE 623-3379
BOWMAN Ll C 3A ONTARIO
6
REPORT TO THE GENERAL PURPOSE AND ADMINISTRATION COMMITTEE MEETING OF
NOVEMBER 19, 1984.
CD-64-84 - Our File: 35.31 .5.
SUBJECT: REVIEW OF BILL III, THE LINE FENCES AMENDMENT ACT
RECOMMENDATIONS:
It is respectfully recommended that the General Purpose and Administration
Committee recommend to Council the following:
1 . That this report be received for information; and
2. That a copy of the correspondence from the Durham Region Federation of
Agriculture respecting Bill III be sent to the MInister of Municipal
Affairs and Housing.
BACKGROUND AND COMMENT:
By letter dated July 22nd 1984, the MInister of Municipal Affairs and Housing
circulated copies of Bill III , entitled "The Line Fences Amendment Act, 1984",
to all Ontario Municipalities for review and comment.
At the Council meeting of September 10th 1984, Council received the correspondence
and directed that:
"the correspondence be referred to staff, and
that staff liaise with the Fence Viewers and
the Durham Region Federation of Agriculture
requesting their comments upon the implications
in the Bill and report back to Committee."
Continued .. . . ./2
�1
CD-64-84 - 2 - November 19, 1984
I would advise, that the Fence Viewers did not respond to the request for
comment. However, the Durham Region Federation of Agriculture responded,
and by letter dated October 4th 1984, raised as concerns two specific matters:
1 . Applicability of the Act in Urban Areas
This section of the Bill would permit a municipality to enact by-laws
exempting specifically defined areas of the municipality from the provision
of the Line Fences Act. (Section 25 of the Act and paragraph 20 of Section
210 of The Municipal Act are to be amended to provide the municipality
with the authority necessary to establish exempted areas. )
2. Fence Viewers Awards
The Federation would like to see the legislation amended to provide for
a limit to the liability that any one owner might have in relation to the
fence viewers award. "That no person be instructed to pay more than two-
thirds of the total fence costs."
(Section 25 of the Act is being amended to provide that fence viewers take
into consideration the benefit provided to both owners, whether in an urban
or rural area. The Courts have been overturning awards on the basis of
benefit to abutting owners and requiring the owner having the highest
use/need to pay the majority of the cost of the boundary fence.
In the case of the Town of Newcastle, given the urban/rural mix, passage of
a by-law exempting certain areas would not be in the best interest of the
community. As well , any attempt at limiting the size of the award would
prevent the Referee from doing his job, particularly where for example the
disputing parties were in the livestock business and a cash cropper.
(The highest use and need for fencing would fall to the person raising livestock) .
Proposed Legislation
The proposed legislation is seen as a housekeeping bill in the first instance
and then as a bill that would see the establishment of Line Fence Referees
who would be given authority under the Act to arbitrate Line Fence Disputes.
Equally important to the municipality is the requirement in the Bill that
Municipal Clerks provide clerical and secretarial services to the Referee
on a "fee for services" basis.
Continued . . .. ./3
CD-64-84 - 3 - November 19, 1984
I have, during the past week received a copy of a letter addressed to the
Minister of Municipal Affairs and Housing, from the Association of
Municipalities of Ontario, dated October 30th 1984, in which the Association
comments upon certain aspects of Bill III. Generally, the Association has
requested that certain parts of the Bill be amended to clarify specific issues.
It would appear, that staff would not have any difficulty working with the
new legislation. There is every possibility that when the legislation is
enacted, the municipality would see a reduction in the number of line fence
disputes being processed.
Having regard for the fact that the Durham Region Federation of Agriculture
has expressed concern with two sections of the Bill, it would be appropriate
that a copy of their correspondence be sent to the Minister for information.
A copy of the Bill and Briefing Notes were distributed to all Members of
Council on September 10th 1984. A copy of the Briefing Notes which clearly
enunciate the purpose of the amendments is attached hereto for your perusal.
As well, copies of the letter from the Durham Region Federation of Agriculture
and the A.M.O. response relative to Bill III, addressed to the Minister of
Municipal Affairs and Housing, are attached for information.
Respectfully submitted,
_ fv
David W. Oakes, B.A. , A.M.C.T. ,
Town Clerk.
DWO/ms
Attachments.
November 9, 1984.
Communications Information I - �10E �s�(��
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Ontario 'B4. \01
ONTARIO
Office of the Ministry of 777 Bay Street
Minister Toronto,Ontario
Municipal Affairs M5G 2E5
and Housing 416/585-7000
July 2, 1984
JUL .20 1984
TOWN M t4WC_ASR
CLERK u :`A.-17y NT
TO ALL CLERKS AND CLERK—TREASURERS
I am pleased to enclose a copy of Bill 111, the
Line Fences Amendment Act, 1984, which was given
first reading by the Legislative Assembly on June
19th. The major purpose of the legislation is
to establish a new method of hearing appeals from
awards of municipal fence-viewers. The second
purpose is to make a number of other, more technical
amendments in order to improve the administration
of the Act. A briefing note explaining all of
the proposed changes is enclosed for your information.
The Bill will sit on the Order Paper over the
summer months in order to provide ample opportunity
for all interested parties to review the legislation
in detail. I would request that you draw the
Bill to the attention of your Council, and that
you advise the members that I will welcome any
comments that they may wish to submit.
Thank you for your assistance on this matter.
Yours sincerely,
DISTRIBUTION
CLERK------�Q--------------------
ACK. BY--------------------------------
ORIGINAL T0: rte_ __
Bennett CONES T0:
Minister
M.P.P. , Ottawa South
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V
BELL 111
LINE FENCES AMENDMENT ACT, 1984
The Line Fences Act provides a local procedure, administered by the
municipality, for arbitrating fencing disputes between neighbouring land-
owners. The actual arbitrators in each dispute are three local fence-
viewers, appointed by the municipal council, who make an award
apportioning responsibility for the fence between the two owners.
Legislation dealing with line fences -- fences to mark the boundary
between the lands of adjoining property owners -- was first enacted by
the Parliament of Upper Canada in 1834. The legislation was
- subsequently revised on several occasions, and in 1913 was re-enacted
under its present name. The Line Fences Act then remained unchanged
except for minor amendments until 1979, when it was substantially
revised after very extensive discussions with all of those individuals and
organizations most interested in its provisions. The revisions were
intended to deal with widespread concern as to whether the Act was still
adequate to deal with changing circumstances in both rural and urban
communities. Since that time, no further amendments have been made.
Although the Line Fences Act is better known in rural areas, it is also
used extensively in urban areas and therefore continues to be of
considerable interest to many people: affected property owners,
municipal people, fence viewers, the Ontario Federation of Agriculture,
and the Association of Municipalities of Ontario. In recent months,
there has been increased interest in the Act because of certain decisions
by judges of the Small Claims Court on appeals against fence-viewers'
awards.
Bill 111, which was given first reading on June 19, 1984, proposes a
number of amendments to the Act, which can be divided into two groups.
The first and more important group of amendments deals with the appeal
- issue, and will establish a completely new method of hearing appeals.
The second group of amendments is more technical in nature, and
consists of amendments to improve the administration of the Act at the
municipal level.
1. HEARING OF APPEALS
Until 1979, appeals from fence-viewers' awards were heard by the local
judge of the County or District Court. Perhaps because of the formality
of that court's procedures and the time required to obtain a hearing,
owners did not often undertake appeals. Since 1979, however, when the
responsibility for hearing appeals was transferred to the small claims
court, there have been many more appeals, perhaps because it is simpler,
quicker, and less expensive to have an appeal heard and decided.
Information is not readily available on the exact number of appeals heard
and on their disposition, because most decisions in small claims court are
not reported. Based on a telephone survey, it is calculated that there
were 58 appeals in 1983. There appears to have been no consistent
pattern to the decisions. Some judges upheld the awards of fence-
viewers by confirming that both owners were to be responsible for half
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of the fence. Several judges, however, overruled the awards of fence-
viewers by stipulating that the owner without livestock received no
benefit from the fence and should therefore bear none of the cost of
building and maintaining it. The latter decisions have attracted a great
deal of publicity, especially the one relating to St. Vincent Township in
Grey County, where one owner was a livestock owner and the other a
cash cropper.
These decisions have had three unfortunate effects:
(1) they have upset many members of the agricultural
community, who are concerned that a long-established
tradition in rural Ontario is being overturned;
(2) they have upset fence-viewers throughout Ontario and
especially in the affected municipalities; and -
(3) they have made it more difficult to persuade owners to
reach agreement for sharing the cost of building, rebuilding
or repairing their line fences, which may mean that there
will be more arbitrations and appeals in future.
To deal with this controversy, it is desirable to establish a new method
of hearing appeals, by having them heard by individuals with a
specialized knowledge of fencing issues and of the traditions relating to
line fences in Ontario, especially in the agricultural community. This
approach was proposed in a Resolution put forward by Howard Sheppard,
M.P.P. for Northumberland, which was passed by the House on May 31,
1984. It was also proposed in a number of submissions, including those
from the Association of Municipalities of Ontario and the Ontario
Federation of Agriculture.
Bill 111 therefore proposes that sections 9 and 10 of the Act be replaced
with new provisions to provide for the appointment of a Line Fences
Referee and Deputy Referee for certain designated areas of the
Province. Although the Bill is drafted in general terms, it is anticipated
that five areas will be established by Regulation: Northern Ontario, -
Western Ontario, Central Ontario, Eastern Ontario, and Metropolitan
Toronto. Either the Referee or Deputy Referee for the relevant area
will hear each appeal from a fence-viewers' award in place of the local
judge of the small claims court. The new appeal procedure will include
the following features.
the Province will be divided into designated areas for
hearing appeals, to be established by Regulation;
a part-time Line Fences Referee and Deputy Referee will
be appointed for each area by the Lieutenant Governor in
Council;
per diem remuneration and reasonable expenses will be
paid to each Referee and Deputy Referee solely on the
basis of appeals heard;
notice of an appeal will be served on the clerk of the
relevant municipality;
the appellant will be required to pay a fee when depositing
the notice of appeal with the clerk;
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the clerk will notify the Referee for that area, who will
hear the appeal or ask the Deputy Referee to hear it;
the municipality will provide a suitable room for the
hearing and stenographic services to the Referee or Deputy
Referee;
the decision of the Referee or Deputy Referee will be
final;
a copy of each decision will be sent by the clerk to the two
owners and to the Minister of Municipal Affairs and
Housing;
the Referee or Deputy Referee will be able to require
payment of the costs of the appeal proceedings by either
owner; and
general support services to the Referees and Deputy
Referees will be provided by the Ministry of Municipal
Affairs and Housing.
2. TECHNICAL ISSUES
Applicability to Condominium Corporations
If an owner wishes to have the fence-viewers called out to arbitrate a
dispute, and the adjoining property is the site of a condominium
development, it is not clear whether the notices under the Act must be
served on the individual unit owners or on the condominium corporation
itself. Since a boundary fence applies to the common elements of the
condominium, it seems appropriate to have all of the procedures apply
directly to the corporation, rather than to the individual unit owners.
Section 1 is being amended to provide for this.
Remuneration of Fence-Viewers
The present legislation permits municipal councils to establish fence-
viewers' fees only on a per diem basis. It has been suggested that the
Act be amended to provide more flexibility in establishing their
remuneration. Section 2 is therefore being amended to provide greater
flexibility in this regard.
Initiation of the Arbitration Procedure
The present legislation allows an owner to initiate the arbitration
procedure simply by notifying the clerk of the municipality. It does not
make it mandatory for that owner to use Form 1, which is provided in
Regulation 579 under the Act. There are very distinct advantages to be
gained by having the initiating owner use Form 1, and section 4 is being
amended to make its use mandatory.
Winter Arbitration Hearings
The Act requires the arbitration hearing to be held not more than thirty
days from the date of an application by an owner, so as to ensure that
the matter is dealt with expeditiously. There have been cases where an
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owner has insisted that the fence-viewers be called out even though snow
conditions have made a proper viewing virtually impossible. It therefore
appears reasonable to give councils discretion to prohibit arbitration
hearings during those months when weather conditions can make a proper
viewing so difficult. Section 4 is being amended to provide for this.
Postponement of a Hearing
The Act does not specifically provide for the postponement of a
scheduled hearing if weather conditions make it impossible for the
fence-viewers to conduct a proper hearing. In municipalities where the
council does not wish to pass a by-law prohibiting arbitrations during the
winter months, or for periods not covered by such a by-law, it appears
desirable to allow the clerk to postpone arbitration hearings on an
individual basis, either because weather conditions or ground conditions
make a proper viewing impossible or make it unsafe for the fence-
viewers to drive to the site of the hearing. Section 4 is being amended
to provide for this.
Factors To Be Considered By Fence-viewers
The present legislation requires the fence-viewers, before making their
award, to have regard to the suitableness of the fence to the needs of
each owner, the nature of the terrain, the nature of fences in use in the
locality, and any other factors that they consider relevant. It has been
suggested that they should also be required to recognize the benefit to
both owners of having the boundary marked by a fence. This seems
appropriate since the marking of the boundary is an important benefit to
both owners, whether in a rural or urban area. Section 7 is being
amended to provide this.
Period of Appeal
After the fence-viewers have made their award, the Act gives either
owner the right to appeal against the award "within fifteen days of
receiving a copy". The clerk is required to send a copy of the award to
each owner by registered mail, but the exact length of the appeal period
is not entirely clear either because it is not always known when the
award was received by an owner, or because an owner refuses to accept
delivery of the registered letter containing the award. It seems
appropriate to clarify this matter, and section 8 is being amended to
deem the copy to have been received seven days after having been sent,
unless the owner can prove otherwise.
Municipal Costs
The Act requires the fence-viewers, in their award, to specify "the costs
of the proceedings"_ and to allocate these costs to the two owners
involved in the arbitration. The phrase is generally interpreted to
include only the fees of the fence-viewers and, where necessary, the fees
of a land surveyor employed to describe the location of the fence where
it cannot be located precisely on the property line. The municipality has
a considerable amount of administrative work in arranging an arbitration
and it has been suggested that it should be able to pass on these
administrative costs to the owners. This appears reasonable, and a new
provision -- section 16a -- is being added to provide for this. A number
of complementary amendments to existing provisions are also being
made for this purpose..
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Unopened Road Allowances
Section 18 allows the fence-viewers, if council gives its permission, to
require that a fence be built along the centre of an unopened road
allowance between two properties. This provision is clearly intended to
be an exception to section 24, which says that the Act does not apply to
public highways. The validity of section 18 has, however, been
questioned on the basis that such allowances are public highways and
that the Act therefore does not apply to them. Section 18 is being
amended to remove any doubt on this point.
Municipal Fencing Agreements along Roads
The Act authorizes municipal councils and local boards to enter into
agreements with adjoining owners for the construction of line fences.
This authority does not, however, apply where the municipal property in
question is a municipal public highway. If a municipal council wishes to
enter into an agreement with an adjoining owner for a fence along the
boundary between a municipal road and the property of the adjoining
owner, there would appear to be no reason why it should be prohibited
from doing so. Section 24 is therefore being amended to authorize
municipal councils to enter into fencing agreements with adjoining
owners relating to municipal roads.
Reserve along Roads
The Act does not apply to public roads, either provincial or municipal.
Along many public roads, the Province or municipality retains ownership
of a narrow strip of land, which does not constitute part of the public
highway. Where such reserves exist, section 24 does not strictly apply so
as to exempt these lands from the provisions of the Act. This is purely a
technical issue, as it is the clear intention of the Act to exclude all
public highways from the Act, and not to make a distinction between
public highways which have reserves and those which do not. Section 24
is therefore being amended to ensure that the Act does not apply to
public highways with reserves.
Applicability of the Act in Urban Areas
A limited number of municipalities have suggested that the Act should
apply in rural areas only, and not where there is urban development.
Before the Act was revised in 1979, some thought was given to making a
distinction between rural and urban areas, but the idea was rejected for
a number of practical reasons. Moreover, all local councils already have
the means of opting out of the Act by passing a by-law under paragraph
20 of section 210 of the Municipal Act for determining how the cost of
division (i.e. line) fences is to be apportioned between adjoining owners.
Such by-laws, however, can only be passed for the entire municipality,
and cannot be made to apply only to certain portions of the municipality.
This means that a municipality with both urban and rural areas cannot
pass a paragraph 20 by-law which applies only to its urban areas. Section
-- 25 of the Act and paragraph 20 of section 210 of the Municipal Act are
therefore being amended to provide that the Line Fences Act does not
apply to lands in municipalities or in defined areas of municipalities to
which a paragraph 20 by-law applies.
June 19, 1984.
DURHAM REGION
FEDERATION OF AGRICULTURE
R. R. #4, Bowmanville, Ontario L1C 3K5
October 4, 1984.
11 ti���-YU
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Corporation of the Town of Newcastle, a
Office of the Town Clerk,
40 Temperance Street, 3'
Bowmanville, Ontario . L1C 3A6
Attention: David W. Oakes, B.A. , A.M. C.T. ,
- Town Clerk.
Dear Sir:
In answer to your letter of September 18th,
re Bill 111 , The Line Fences Amendment Act, 1984, please
be advised that a committee was set up to study the
amendments, and at an executive- meeting held on Wed.
evening, October 3rd made the following report.
On the positive side to -the amendments, the
committee reports, that the proposed act stipulates
that the fenceviewers, when making their decisions, take
into consideration the benefit of having boundary fences
between land owners marked by a fence. Also , the estab-
lishment of a referee and deputy-referees, and in the
case of appeal , the referees decision is final. Another
positive side, is the provision made for municipalities
t-o enter into an agreement with landowners regarding
fences along the roads.
Of concern to the committee and executive, is
the possibility of a municipality to exempt the urban areas
from the Act. Previously, municipalities had to exempt the
whole municipality or none of it. In some municipalities
where rural areas abut the urban area, the committee could
see problems arising over common fences, especially if
the urban areas are exempted from the Act.
A paragraph the Durham Region Federation of
Agriculture would like to see included in the act is "that
no person be instructed to pay more than two-thirds of the
total fence costs. "
2 -
Cont' d.
I would like to take this opportunity, on
behalf of the Durham Region Federation of Agriculture,
to thank the Town of Newcastle council for asking our
organization to report on matters concerning the rural
and agricultural community.
Yours truly,
i
Gordon Barrie,
GB/dc President. f
IaU71 L3
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Association of Municipalities of Ontario
Suite 902•100 University Avenue,Toronto,Ontario MS) 1V6•Telephone 593-1441
October 30, 1984
The Honourable Claude F. Bennett
Minister of Municipal Affairs and Housing
17th Floor
777 Bay Street
Toronto, Ontario
M5G 2E5
Dear Minister:
The Association of Municipalities of Ontario has completed its review of
Bill 111: An Act to Amend Certain Acts in Relation to Line Fences and it
wishes to make the following comments:
Section 5: amend by inserting in the third line, following the words
"of their land, the phrase "as applied to both existing and potential
future uses".
Rational: Because of the changing nature of rural Ontaro and its
residents, AMO believes that settlements regarding boundary fences must
reflect the potential uses that any property may have. A suitable
fence, and sharing of costs related thereto-, while acceptable under
existing circumstances, could on a change of ownership, provide less
benefit than is considered to be the norm. This change should also
strengthen the fence viewers position in making a 50/50 award.
Section 7: amend Section 9(3) by inserting in the fifth line, following
the words "of the appeal", the phrase "which time shall be within 30
days of the date upon which the notice of an appeal is received by the
referee."
Rational: Because of the limited number of appeals, AMO believes that
there would be minimal difficulty in meeting the suggested time
limitations. As there is usually urgency in the need for the fence, it
is desirable that there be as few delays in the process as possible.
23 4
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G
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ADMIN'Si'AT
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Section 7: amend Section 9(5) by deleting "The referee" and insert in
lieu thereof "A referee and deputy referee, or such deputy referees,
being not less in number than two, as the referee shall specify".
Rational: AMO believes that it would be desirable and more acceptable
to the parties to an appeal to have a panel of at least two to hear the
appeal. Experience at O.M.B . hearings indicates dissatisfaction with an
individual having such prescriptive powers.
Section 12: amend Section 25 (b)(1) by the addition of the phrase "or
his designee" after the word "clerk" in the first line.
Rational: This would provide the clerk with the flexibility of
delegating this duty to another person if scheduling problems made it
impossible for the clerk to attend.
Section 12: delete in Section 25 (b)(2) the word "stenographic" from
the third line and insert in lieu thereof "typing".
Rational: There appears to be some room for misinterpretation of the
word "stenographic" in that it can be taken to involve the services of a
person having shorthand capabilities or other special training for the
recording of proceedings. For many smaller municipalities to provide
such a service would be a somewhat unrealistic burden.
Section 13: as it applies to Section 27(b) of the Line Fences Act, AMO
could support the division of the Province into not less than -five (5)
appeal divisions with a referee appointed to each plus a number of
deputy referees, as deemed advisable.
Rational: Five appeal divisions should provide a reasonable division of
the Province for administrative purposes. Also, the appointment of a
referee for each appeal division, together with a number of deputy
referees, should insure there are persons available to suit the
circumstances of an appeal - ie. rural to deal with rural appeals and
urban to handle those of an urban nature. Perhaps consideration could
be given to appointing deputy referees on a county basis.
Sections 12(5) and 17(2) and (3): amounts to be added to the collectors
roll should be "deemed to be taxes".
Rational: The municipality must be in a position to enforce its
additions to the roll - reference is made to the decision in the High
Court of Justice in the matter of Scarbim Realty Ltd. and the City of
Toronto.
.. ./3
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Sundries: -
A provision should be included in the bill whereby the boundary fence
may be constructed by either of the parties to a dispute, subsequent to
and in accordance with an award by the fenceviewers, without prejudice
to sharing of costs as might be determined by any subsequent or pending
appeal.
Rational: Similar to suggested amendment to Section 7 of the Bill.
There is usually some urgency, on the part of one of the parties to the
dispute, as to the need for the fence - this would expedite
construction, repair, etc., as applicable.
While it is implied, it is felt there should be a precise-statement as
to the fenceviewers jurisidiction - ie. they have jurisdiction over the
fence, its type, the sharing of costs, etc., but not over location,
where there is a disputed boundary line.
Rational: There is apparently confusion as to the applicability of the
Act in that persons have insisted on summoning fenceviewers prior to the
determination of the location of the fence as it relates to the boundary
line. A specific statement that there is no jurisdiction in such
circumstances would relieve conflict in interpretation at the municipal
level.
Sections 1(3), 4(1), and 7(1)(b)(ii) of the Bill, among others-, should
be rewritten to ensure that situations involving one boundary fence but
three or more owners can be determined by a single decision.
Rational: It is envisaged that a situation may arise where a large lot
under one owner may abut several smaller parcels under separate
ownership. It would appear logical that where there is to be a
determination and more than two landowners are involved, one combined
process would be appropriate.
The Association respectfully requests that consideration be given to
amending the Bill, as described above, prior to it receiving third
reading.
Yours. truly,
Ron Eddy
President
RE/vc