Are Unlawful Official Plans the Tool to Take Control Of Private Property? Opinion Submitted by Donna Burns

On Thursday, August 19^th the Renfrew County Council held a “public meeting” through computer access only for the purpose of approving their Official Plan Amendment from the previous Official Plan that was adopted by the province in March 2020.  It was very obvious to those who have computer access and technology to view this public meeting, that it was already pre-arranged to adopt these Amendments that night regardless of what input the public had submitted.  Immediately following the “public input”, the council did a “recorded” vote to unanimously adopt it.  There was no discussion during the meeting or no plans for discussion following the meeting.  4 Days later those who provided written or verbal submissions received a “Notice of Decision” from the County where it states the “Subject Lands: Amendment applies to all lands within the County of Renfrew” and IF they wish to “appeal” their decision, that they must pay $1,100.00 to the Minister of Finance”.  Imagine…paying $1100.00 (payable to the province) for each submission to appeal their decision for an UNLAWFUL Official Plan bylaw.  Even the Province approved the UNLAWFUL official plan – they had to know, when they approved it, that the County did not follow the rules of the Municipal Act and Planning Act when they created this official plan.  Approximately 800 property owners submitted letters to the County Council the first time, objecting to the Official Plan and demanding the provincial designations that were unlawfully applied against their private properties be removed. This was ignored, even though they were reminded and provided with the various sections of the Municipal Act and Planning Act which states:  they must acquire the land with the consent of the property owner before they can develop any feature of the Official Plan. 

The County Council was also made aware of the Legal Nonconforming Rights for Property Owners under Sec 34 of the Planning Act. On May 14, 2021, Gowlings WLG Municipal Group published an article stating: “LEGAL NONCONFORMING RIGHTS are one of the most powerful protections to landowners under land use planning law.”  Legal nonconforming rights mean that a municipality does NOT have the authority to pass a new bylaw against a property that has already been classified for a specific purpose.  “The concept is codified in s. 34(9) of the Planning Act, which explicitly provides that a zoning by-law cannot prohibit the use of land, a building, or a structure that was lawfully commenced on the date the by-law was passed. Under the common law, the protections for legally nonconforming rights are even stronger. A series of decisions dating back to the 1950s, including from the Supreme Court of Canada, have established that owners also have a right to evolve or reasonably expand or intensify a legally nonconforming use.” Therefore, it would seem if there never was a “water setback land restriction” on a property when it was purchased by a property owner, then the municipality cannot enforce that water setback restriction today in the form of a bylaw; or if there is a property that was never zoned as EP (environmentally protected) when it was acquired by a property owner, then a municipality cannot zone it retroactively.  Also, it would seem, they cannot demand that a property owner pay thousands of dollars for an “environmental impact study” (approx. $18,000.00) if he should wish to put a new structure on his property that would “expand his legal nonconforming use”.  Perhaps this also applies to “trailer bylaws” that many municipalities try to enforce against private property owners.  If a private property owner wishes to put a trailer on his land, where does a municipality have the authority to prevent him from doing so under the legal nonconforming rights?  Of course, there is also the fact, that municipalities MUST ACQUIRE the land before they can exercise their authority on it!  “They cannot zone it, if they do not own it!” The link for this article on legal nonconforming rights is:  https://gowlingwlg.com/en/insights-resources/articles/2021/legal-nonconforming-rights-trilogy-in-ontario/

Having been provided with the various sections of the Municipal Act and Planning Act in the past and then being reminded again for a second time, it appears that County Council, the CAO, and Planner are not doing their due diligence to verify the information outlining where their authority begins and ends within these two Acts. In my opinion, this clearly illustrates their Official Plan bylaw has exceeded their authority in law and therefore, this by-law is UNLAWFUL. Which reminds me of the Whitewater Region dog tag bylaw.

In 2013, we challenged our local municipality on the validity of their dog tag bylaw as a result of being charged for failing to purchase a dog tag that tied us up in the court system for 5 years. We showed that the municipality was misleading the public to believe that they have the authority to charge a fee for the ownership of a dog when in reality, the Municipal Act states, in section 103 and section 105, that the Municipality only has authority to impound or muzzle dogs, running at large. The Official Plan appears also to mislead the public, to believe the municipality has the authority to regulate what you can and cannot do on your private property… when, in reality, the Municipal Act states they must enter into an agreement with the property owner to either expropriate, purchase or lease the property BEFORE they can exercise their authority on that property.

It is my opinion, Renfrew County Council has knowingly exceeded their authority and is continuing to take control of private property from the people, by using official plans to do so.  In so doing, this may: (a) devalue the private properties; (b) restrict the use of private properties sufficiently, hoping the property owner will give up and walk away; and (c) enforce regulation on private properties that will demand costly studies before a property owner can expand or make any improvement to his land/property.  Actions like this, show that the Council Members have more interest in serving the needs of the Municipal Corporation, than they do in protecting the welfare and legal interests of the constituents – the shareholders of this Municipality who have trusted them to protect their investments.  Their actions are throwing property owners under the bus.

This is the 2^nd time, this has happened with Renfrew County Council. Based on this fact alone, how can they plead “Immunity” under section 448(1) of the Municipal Act, that they were … “acting in good faith” … under the instructions of another person?  The Councillors guide, issued by the Ministry of Municipal Affairs and Housing, explains the role of Councillors and that they are required to READ the Municipal Act in its entirety, to know it and to understand it, before they approve any bylaw, such as the Official Plan.  IF, they had read and understood the Municipal Act, they would know:

1. a) Sec 6, explains that they must expropriate, purchase or lease land belonging to a property owner and compensate them fairly in accordance to the “provincial” Expropriations Act.  Since Council has NOT entered into agreements with the property owners, yet they still applied provincial land designations on those properties without compensation, this is called “constructive expropriation”; and, under the Municipal Act, they do not have authority to do so.

1. b) 322\12 of the Municipal Act for “Local Improvements” states: “private” means with respect to a work or property that is not owned by the municipality.  And further, in Part III under that Regulation, sec. 36(1) states: “any undertaking works as local improvements on private property require the consent of the property owners”.  The official plan is “community improvements for the local municipality” – did they get consent of the property owners? 

1. c) Sections 10 and 11 state: “A municipality may pass a bylaw on a “public asset” that must be acquired before they can exercise their authority on it.  Any property a municipality acquires, through expropriation, purchase or lease, must be for the use of the public (a public asset).  Once the Official Plan is adopted, it then becomes a “bylaw”. Did they legally “acquire” all the lands within the County to enforce their authority on it? 

1. d) Section 14 states: “A bylaw” is of no effect, if it conflicts with any provincial or federal act, or any instrument (Crown Land Patent Grant) of a legislative nature”.

• Did they read the provincial Real Property Limitations Act that defines what “land” is and what it includes?  Also sec. 3 of this Act states: “no entry, distress or ACTION shall be made on behalf of Her Majesty (the province) for the recovery of any land until AFTER it has been accrued.  The provincial designations are an “action” and “distress” is when a property owner is prevented to make any change to his property without paying thousands of dollars for a “study”.
• Did they read the provincial Farming Food and Protection Act (sec 6) that states: “no municipal bylaw applies to restrict a normal farm practice carried on as part of an agricultural operation”. Definition of a “normal farm practice” is at the beginning of the Act.  “Wetlands” or “Environmental Protected” is a provincial designation that often interfere with a farming operation.
• Did they read the provincial Forestry Act, sections 11 & 12 that state: the land must be acquired before the municipality can create bylaws to regulate it. Example: tree cutting bylaws

1. e) Section 135 of the Municipal Act states: a municipality must refer to the Forestry Act before making any bylaws to the woodlands.

Under the Criminal Code Act there is also Section 430(1)(c) under Mischief states: “Every one commits mischief who wilfully obstructs, interrupts or interferes with the lawful use, enjoyment, operation of property …. is guilty of an indictable offence with possible imprisonment up to two years; or guilty of an offence on a summary conviction (means no jury).    

What is wrong with municipal councils, planners and CAO’s that they would put themselves at risk of civil action brought against them for doing harm to a private property owner?  Do they really believe they are “immune” from the decisions they make?  When they campaign at election time and promise to make sure their local government is transparent and accountable for their actions, what happens once they get elected?  Why do they remain silent and not question the actions of the staff that, clearly, they would not consent to, if these decisions were applied against their own properties?

When Pierre Trudeau amended the 1867 Constitution (British North American Act) in 1982, he did not include Property & Civil Rights because the provinces DID NOT want the Federal Government to have control over their public and private lands.  Property Rights ARE protected under the Province of Ontario wherein it states:

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 15^th 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…

Now that this information is “out in the open” for ALL to see, hopefully we won’t suddenly learn that there are “big changes” to our legislation that gives more power to government and removes our right for the protection of private property.  THAT would certainly confirm that government plans to remove property from the people, wouldn’t it?    The purpose of this article is to educate the public about private property rights and that there is legislation in place that protects government from misleading you to believe THEY have total control over the use of your property – they cannot have that control …. UNLESS you consent to it. Think about who you VOTE for.  Are they taking the position to protect your investment; or are they taking the position to remove your investment from you?  Actions speak louder than words …..remember that.