A Constitutional Challenge by Joan Olech

How did my trees become their affairs?

This is a favourite question that Anthony Kaluzny asks when speaking to the tree bylaw in the Niagara region.  And in order to understand why he asks that question, a little background is required with respect to land ownership in Ontario. The origins of privately owned land in Upper Canada largely began in the late 1700’s. The Indigenous peoples that were encountered by the Europeans were not conquered using force of war. They were willing to enter into agreements and those agreements were confirmed through treaties that meant the Crown became the owner of certain lands in Upper Canada.

As a right of ownership, a statutory right as per the Letters Patent Act of 1571 and a prerogative right of the Sovereign, King George III granted free land to English speaking protestants who would most likely be loyal to the Crown. His purpose was to turn the waste lands, as they were then considered, into viable and productive farmland as well as increasing the forces required for defence of the Realm. These settlers, along with soldiers and loyalists were granted large parcels of land, most typically 200 acres.

Upon requesting a grant of free land, the grantee was charged with clearing a portion of the land and building a home within a three-year period. That condition being met, the grantee was required to swear an oath and the grant of land to the original grantee, heirs and assigns forever, was made patent.  Those Letters Patent became the original root of title to the land and were so recorded in the land register.  

Just as the agreements made with the Native populations and confirmed by Treaty are protected in our Constitution and upheld by the Courts, so too are the grants of land from Sovereign to first grantee, heirs and assigns forever, to be respected and upheld by the courts.  But unlike our Indigenous communities, most Canadians don’t even know that the root of title to their land, the agreement from which all right, title and interest stems is the original Crown grant, published as an open Letter for all to see, and commonly referred to as Letters Patent or patent of land.

Think of our original grant as an agreement between 2 or more parties. The Crown is the owner and therefore the grantor, and has the right to enter into a private agreement to gift land to a willing recipient. The grantee accepts the gift of land and all of the associated conditions and provisos and in order to complete the conveyance, valuable consideration, which in most cases was service, work or loyalty is undertaken. The grant becomes patent when all of the conditions are met and the Great Seal is applied. This agreement has all of the essential elements of what we consider a contract: willing grantee/grantor, valuable consideration and confirmed under seal. So what is standing in the way of these contracts being upheld and respected in Ontario?

Here are some basic facts. Ontario, formerly Upper Canada, was largely granted to private ownership before Confederation. Those grants of land were Imperial. Although over 87% of the land in Ontario remains in the Crown, the balance that is in private ownership was mostly granted by the Imperial government.

Is it wording on these Imperial grants that makes them special?  I would suppose that the granting of all right, title and interest in the granted tract of land along with all the woods and waters laying and being, heirs and assigns forever has something to do with it.  But it can’t be argued because that was the express will of the Sovereign, and the Crown is bound by its grants. 

Most Imperial grants have some rights that were reserved for the Crown. Generally, the rights reserved, commonly called reservations in the original crown grant, were mines of gold and silver and all white pine trees. These rights or interests so reserved were passed to the Province of Ontario at Confederation. (And if you check your parcel register, available for purchase through Onlands, it will state “subject to the reservations in the original Crown grant”).  Ontario has since released those reservations, passing any rights or interest to white pine trees and mines of gold and silver to the respective landowners.   No other trees were typically reserved!

What is the current status of the lands so granted?  Well, on patenting the fee became vested in the grantee subject only to the reservations in the original Crown Grant and the obligations of fee simple. Most simply stated, those obligations are limited to police power, escheat, compulsory purchase and taxation.

A few more facts regarding land. Firstly, land has a very special property designation: it is referred to as real property. The conveyancing act of Ontario, in Section 15(1), details what is conveyed when real property transacts.

What is included in a conveyance?

15 (1) Every conveyance of land, unless an exception is specially made therein, includes all houses, outhouses, edifices, barns, stables, yards, gardens, orchards, commons, trees, woods, underwoods, mounds, fences, hedges, ditches, ways, waters, watercourses, lights, liberties, privileges, easements, profits, commodities, emoluments, hereditaments and appurtenances whatsoever to such land belonging or in anywise appertaining, or with such land demised, held, used, occupied and enjoyed or taken or known as part or parcel thereof, and, if the conveyance purports to convey an estate in fee simple, also the reversion and reversions, remainder and remainders, yearly and other rents, issues and profits of the same land and of every part and parcel thereof, and all the estate, right, title, interest, inheritance, use, trust, property, profit, possession, claim and demand whatsoever of the grantor into, out of or upon the same land, and every part and parcel thereof, with their and every of their appurtenances. R.S.O. 1990, c. C.34, s. 15 (1)

Real property rights run with the land, regardless of ownership.  So unless an owner, being the original grantee, heir or assign gives up a right granted by the Sovereign of the Crown in the original grant from the Crown, that right remains with the land regardless of who owns it.  

The question then becomes when and how did the municipality acquire the right to impact in any way Anthony Kaluzny’s trees?

This is what our Constitutional Challenge is about. The case we presented in Superior Court was unsuccessful, so we are now appealing the decision to the Ontario Court of Appeal.  The court chose not to address many of the issues we presented and additionally disregarded the importance of an Imperial Patent as the only place the rights associated with real property are spelled out. 

We have a Facebook group called Upper Canada Land Titles and Patent Research and all are welcome to join.  Upper Canada Land Titles has also established a you tube presence to help educate with respect to real property rights, case law, the Constitution and Imperial Letters Patent.

If you would like to read the decision, please go to Canlii.org and check out Upper Canada Land Titles v. Regional Municipality of Niagara et al, 2022 ONSC 5257

We need your help!

If you are able to contribute to our appeal, please make your Cheque payable to:


And mail it to:

Ms. Erika Furney,
118 Colbeck Drive
Welland, ON
L3C 7B2