Degradation of Property Rights in Ontario by Elizabeth Marshall

Elizabeth Marshall
Elizabeth Marshall

A little history, I feel, is in order. For quite some time now, people have been asking me when the removal of private property rights started. Some feel it was back in 1905, others feel, 1913, and yet others feel it was in the 1940’s – 1950’s. The main degradation started in the mid 1970’s (1974) with the implementation of the Niagara Escarpment Planning and Development Act, unconstitutional as it was. This was referred to as the first real theft of the land from the people, by government.

Back in the ’60’s there was debate, in the legislative assembly, as to what the Niagara Escarpment Commission (NEC) was to be. This was also the time that the Hall report came out on education (1968). This is why our education system is failing our children and our society. As noted in Living and Learning, “The Report of the Provincial Committee on Aims and Objectives of Education in the Schools of Ontario, Department of Education, 1968” p. 9:

“At no time in our history have we had a better vantage point from which to view the role of Canadians in the affairs of man. Perhaps, too, no better opportunity has been offered to transcend the ordinary conditions of our free society and reach a new plateau of human commitment to the common good.”
This was the beginning of the end of justice for Canadians. Just 3 years prior, in the Ontario Legislative Assembly, it was stated by Mr. Gisborn, Ontario Legislative Assembly, February 11, 1965 Volume 1, Page 478:

“The rule is: the public good is always paramount but never when it is at the expense of a private individual.”

In other words they understood that the “common good” was to be subject to the protection of the individual’s rights. This was for the protection of everyone’s rights.

Government of the day stated that to protect the Niagara Escarpment they would have to acquire the land to make a park to facilitate the Bruce Trail and a little of the surrounding area. It was felt that perhaps the Niagara Park Commission should make these acquisitions. (FEBRUARY 6, 1967 VOL 1, Page 227 – 228, SPEECH FROM THE THRONE: Mr. G. A. Kerr (Halton): In order to prevent overlapping and conflict between the municipalities through which the escarpment runs, and so that the industry knows exactly its rights, one such authority is essential. Possibly the Niagara parks commission could be extended to include all of the escarpment, and be called the Niagara escarpment parks commission. The commission should have some policy of land acquisition at or near the face of the whole escarpment.) From there it all went down-hill.

In 1974 – 75, the “progressive movement” under Premier Davis truly began to influence government as there was debate, in the house, pertaining to the NEC. These debates spelt out the end of protection for private property, in Ontario. In the debates included comments, from the opposition of:

“… Mr. Speaker, I recall that the hon. member for Downsview, the hon. member for St. George and I spent innumerable hours drafting amendments to the original legislation in relation to the hearings. One of the matters we were not able to convince the minister of was that when we affect people’s fundamental rights to land use there should be a corresponding right of compensation.” (Mr. A. J. Roy (Ottawa East) 1974 Vol 3. Legislative Debates, Page 3886).

And then the sitting government, of the time stated (1974 Vol 3. Legislative Debates, Page 3886):
“Hon. Mr. Irvine: … There has never been any compensation given and there never will be because we haven’t got enough money to do so, either at the municipal level, the federal or the provincial.

Mr. Givens: Does that justify stealing?”

And yet, in the beginning, there had been some compensation for land under the N.E.P.D. Act, but then the legislation continued to bastardize the rights of the people with the Parkway Belt, (Mr. A. J. Roy (Ottawa East): “These people in fact could put a financial tag on the loss that they were suffering. At that point their only right, Mr. Speaker, was simply to pay taxes on the land. Because who would buy this land which was turned into, for instance, part of the parkway belt?” 1974 Vol 3. Legislative Debates, Page 3886) etc. Because government couldn’t continue to pay, and there was, under common law no constitutional right to expropriate for parks, or recreation, things continued to get worse. And in the 1980’s was when government really decided to remove the constitutional rights of the people replacing it with the “common good” and the misinterpretation of legislation.

In 1987 was the era which introduced the POLARIS land registry system. This again was part of the “progressive movement” with MPP Norm Sterling explaining, in 2001 (Honourable Norm Sterling, Min. of Consumer and Business Services. Committee Transcripts: Standing Committee on Public Accounts – February 26, 2001 – Special Report, Provincial Auditor):

“The first and the oldest type of system that we had in Ontario was the land registry system, which essentially was a system inherited in its form, its rules and its law from Britain. That system was developed over an 800-year period, so when we started to set up our land registry offices we adopted a lot of the rules, the rights of easements, the rights of licences, the rights of fee simple, the rights of fee in tail, all those kinds of names that were common in the land registry system from Britain.

The land registry system was basically a system of registration which allowed a great deal of flexibility with what you could do with land. That was sort of the beauty of the system, that you could use land and grant rights and partial rights, leasehold rights, easement rights, in a whole number of ways that therefore allowed a great deal of flexibility for the landowner to share his or her property rights with others.

What happened in around 1986 or 1987 was that the government of the day decided that it would try to take another step in the long history that I’ve outlined… they started a project totally within government called Polaris. This was contained in the Ministry of Consumer and Commercial Relations, through which the land registry offices have always reported… Teranet, which is still the company with which we are engaged in undertaking this project.”

The 1980’s brought in the age of destruction of documents, in the land registry which pertained to titles, wills, etc., and this action was brought on by the MPPs and the bureaucrats of the time. (Art Daniels, assistant deputy minister, spoke on behalf of the Ministry and explained that since 1987 “The removal of instruments from prior to 1948 is a long-standing issue with the ministry,” and that “some will be destroyed, a lot of the discharges and such…about which instruments prior to 1948 would be retained, which would be retained only on microfilm and which would be retained in hard copy.” CLOSURE OF LAND REGISTRY OFFICES, Resuming consideration of the designated matter pursuant to standing order 123, relating to the closure of 14 land registry offices. July 30, 1991 1003.) It wasn’t until the PC’s were out of power that they began to stand up for private property rights against Peterson.

As stated in the Official Records, April 29, 1993, Ontario Legislative Assembly. Teranet Information Disclosure Act, 1993. at 1050:

Mr David Tilson (Dufferin-Peel): Mr Speaker, this is a subject that has come up in this House when I was critic for the Ministry of Consumer and Commercial Relations, it has come up in the standing committee on estimates and it has come up in the standing committee on public accounts.

Although it deals with the computerization of our land registry system, … my intent in making this bill is to deal with situations where our government, the provincial government, enters into a partnership relationship with a private corporation and the fact that all of the affairs of that partnership are kept in confidence because of our privacy legislation.

I will briefly give the history of how Teranet Land Information Services Inc arose in the land registry system. The registry system was started, …, in 1795 and the land titles system was started in 1895. For over 150 years in Ontario, these systems have protected our rights in property. … in the 1970s that the Ontario government recommended major reforms to improve the recording service and access to land records and the distribution of land records. Finally, it was proposed by the then Conservative government that there be a program called Polaris, which had the following objectives:

– convert all properties to a land title system
-to eliminate the extensive 40-year search requirement;
-to create a province-wide map index to locate each known property in Ontario;
-to automate the land records system to allow searching by computers
-to increase the use of microfilm to reduce document storage requirements.

The computerization of this system, was favoured by all. All three parties,… Where the difficulty occurred, it was decided by the subsequent Liberal government to enter into a private partnership arrangement and this occurred, …in 1988.

…”With Teranet, data on every property and land owner in Ontario is for sale.

In the 90’s Bob Rae’s NDP gained power. Previous, the PC’s had done an extreme amount of damage to property rights, with 11 volumes of legislation, and this continued as the NDP re-wrote almost every piece of legislation and created even more. The government of the time came up with 12 volumes of legislation in 1990, with the erosion, of private property rights, continuing. Then there seemed to be a continued, albeit quiet, removal, but then with 12 volumes of legislation, why bother to make more. This government merely continued with more and more regulation.

When Harris came to power, it would seem, he started out trying to rectify the situation. He seemed to be trying to correct this erosion, but during the last couple of years, of his tenure, he began down the same rabbit hole that all previous governments had – he bought into the “progressive movement” with amalgamation and the Oak Ridge Morraine. After Mr. Harris left Mr. Eves continued with his “Red Tape Act.”

“The Red Tape Act,” was supposed to correct and remove some of the problems of the 1990 legislation, but in fact it merely made it worse with failed interpretations of the legislation creating even more of the problems we are dealing with today. More enforcement, regulations, by-laws, etc., which all fail the test, and only continue to worsen the situation. It would also seem, no one is reading the legislation, in its entirety; [emphasis added] to know and understand that none of this was to take place and that it violates the people’s fundamental rights which are constitutionally protected.

Every political party is involved with this systemic problem and removal of private property rights. This is why I remain non-partisan and try to remain completely non-political. We have a new hope, though, but only if the Ontario Landowners Association continues to grow and is appreciated for what it stands for; upholding the constitutional rights of the people against the misinformed government officials who seem to take pleasure in removing their own rights as well as ours. I guess this is why there is an Ontario Landowners Association because the people needed somewhere to turn for help. The political parties just don’t seem to have the will or ability to help the people. And I guess that is why I am a very proud member of this Association…because it stands for the protection of the people’s constitutional rights.

If people want this great province of ours to grow, prosper and to become what it had once been; the economic engine of the country; the pride of Canada, then the people of this province need to understand that without private property rights there is no social advancement because there are no rights.

Being a “progressive” is being a Hegelian and it was the Hegelian Philosophy of Right which has removed the rights of the people and replaced it with what we are dealing with today. People do not understand that under previous common law governments there was care for the sick and elderly provided by the Crown, there were hospitals, and advancements is medicine, engineering, the arts and so on. It wasn’t until the Hegelian progressive movement began that the inviolable rights of the people were moved to the back seat and the state took over. Any true democracy understands that to protect democracy the individual’s rights must be protected from mob law, or no one’s rights are protected. True democracy is that protection.

Gottfried Dietze, 1995 – In Defense of Property, p. 27-28. Property, Blackstone felt, although originally resting on natural law, could, under conventions concluded by individuals, be regulated by government. However, by means of regulatory measures, it could be expanded rather than restricted. The English government, whenever regulating private property, was bound by natural law. English law itself was part of the law of nature. That latter was “coeval with mankind, and dictated by God himself,…binding over all the globe, in all countries, and at all times. No human laws are of any validity, if contrary to this; and such of them as are valid derive all their force, and all their authority, mediately or immediately, from this original.” This subordination of the law of England to the law of nature and the resultant protection of private property was based mainly upon Blackstone’s high evaluation of property. Considering property a remedy for sin, he felt that it was positive good and characteristic for the advance of civilization. Property is necessary “in order to maintain peace and harmony,” to promote “the great ends of civil society” and the common good for “the public good is in nothing more essentially interested than in the protection of every individual’s private rights,” and “experience has shown that property best answers the purpose of civil life, especially in commercial countries, when its transfer and circulation are totally free and unfettered.” “So great, moreover, is the regard of the law for private property, that it will not authorize the least violation of it; no, not even for the general good of the whole community.”

I hope this explains my thoughts on property rights, some of the political movement and my loyalty to the Ontario Landowners Association. Where it states in my emails “…the public good is in nothing more essentially interested, than in the protection of every individual’s private rights…” Blackstone Commentaries, 2:138-9, that is because in removing one person’s rights we are essentially removing our own.