Illegal Bullying By Conservation Authorities Castigated By High Court by Gord Turcotte

Published February 1, 2016

“[It] is not akin to studying the impact of fluttering butterfly wings in Mongolia on flooding in [Ontario]” – Superior Court of Justice

Alex and Tania Gilmor of Shelburne, Ontario are heroes. They are heroes because they maintained the fortitude and wherewithal to battle the unjust persecutions that many Ontario residents and businesses now suffer at the hands of our current government.

The now regimented clerics of our Conservation Authorities continue to sow religious persecutions across the province to the detriment of people like the Gilmors and all Ontarians. However, with the conclusion of this case we may all owe the Gilmors a great deal of gratitude.

Over the past six years, the Gilmor’s file wound its way through the legal system to the Ontario Superior Court of Justice (Divisional Court). Once there, the higher Court was decisive in granting their appeal. The high Court reversed a previous decision by the Mining and Lands Commissioner (Tribunal Court) to uphold an earlier decision by the Nottawasaga Valley Conservation Authority (NVCA) to deny the Gilmors permission to build a home on their land. After six long years and thousands of dollars wasted, the Gilmors are now free and clear of the clutches and zealous ilk of the Conservation Authority (regardless, they must still complete the building permit process).

This is a landmark case not only because it was decided in Superior Court, but also for several notable reasons. First, the Gilmors did not back down from the initial denials because they knew that the NVCA was operating outside of the law and the Tribunal erred in law and that error could only be corrected at Superior Court. This is notably important because many people do not understand the differences between the levels of our Court system until they are caught up in it.

Most cases between landowners and Conservation Authorities are heard in Provincial Offences Court. These cases stem from charges laid by a Conservation Authority for infractions under its own published ‘regulations’ that are ‘committed’ by the landowner.

However, these regulations are intended for the Conservation Authorities own statutory ‘objects’, much like an Ontario Corporation sets its own bylaws and policies under the Corporations Act to manage its own business affairs.

At Provincial Offences Court, a Justice of the Peace (JP) examines the published regulations and compares them with the facts at hand (amongst other considerations). It is important to point out that a JP is not a trained lawyer or Judge and he or she makes decisions based on the criteria before the Court. In this setting, these rulings will generally favour the Conservation Authority.

Discouraged and disenfranchised at trial, the landowner accepts the lower Court’s decision, believing it has moral authority and force of law. Thus, the case goes no further and this process generates a growing body of jurisprudence for all Conservation Authorities. Here’s where things get legally challenging.

Provincial Offences Court does not have the power and authority (the legal jurisdiction) to review or rule on whether or not the regulations themselves are ‘correct, appropriate or reasonable’ (points of law).

However, the Superior Court makes no mistake:

“…the Tribunal erred in interpreting the regulatory framework under which it was operating. I have found the decisions both incorrect and unreasonable…”

Given the lower Court’s narrow jurisdiction, naivety of the landowner and growing jurisprudence, the Conservation Authorities utilize this system to expand their own powers and authority. And as is now exposed by the Gilmor case, all Conservation Authorities have been expanding their powers and authorities beyond what is legislated by statute in the Conservation Authorities Act (CAA) and other legislation. Embezzlement can only be dealt with in a Court of law before a Judge. The Gilmors pursued this.

This is also a landmark decision for what is contained in the Court’s reasons for allowing the appeal. Littered throughout the evidence and proceedings, the Superior Court uncovered a regime of taxpayer-funded bullies running around Ontario “expropriating” property rights from otherwise law-abiding Ontarians. The methodology used by the Authority is covert: deny permission to the landowner to develop his/her property for reasons other than what is provided for by statute. For instance, in a case cited in Gilmor, the Superior Court previously discovered that:

“The Tribunal itself has on different occasion characterized this as a “subtle form of expropriation”’ – (Junker v. Grand River Conservation Authority)

Although the CAA does contain provisions for powers to expropriate title to land, those powers are subject to the Expropriations Act, which first requires statutory consent from the governing body. Make no mistake, a Conservation Authority is not the government nor is it an agency thereof. It is now an independent service provider.

Regardless, these “subtle expropriations” are not over title to land, but to the rights to use of it. This illegal bullying is condoned through the PPS (Provincial Policy Statement) and mandated by zealot administrators within government and the Conservation Authorities. However, these are administrative policies, not laws.

In Junker v. Grand River Conservation Authority, the Superior Court states:

“…Government policies are not, however, law. By adopting these policies, an authority cannot acquire a jurisdiction greater than it is given by statute. Nor can an authority use the policy statements to expand on its objectives as set out by legislation…”

And in the Gilmor case, the Court confirms that:
“… Provincial and NVCA policy statements…do not have the force of law…”
And if ‘illegal expropriation’ of property rights was not enough, the Superior Court further found that:

“Authorities have been taking risk of life into account in refusing permission to build. This is beyond their authority. That all authorities seem, without challenge, to use concern for risk of life as a reason for refusing permission is amazing. They, clearly, do so without authority…In this case…safety was used…to impose a blanket ban on development…that is itself without statutory mandate…”

In other words, our current government, deploying the clergy of the Conservation Authorities, use any means necessary to ‘expropriate’ use of land. Except that, under the Expropriations Act, compensation at marketable value must be given to the expropriated party. And again, make no mistake – the marketable value of any land is its use. Here, the Court notes:

“…Land use restrictions of the sort imposed by the NVCA Regulation can impair or even sterilize land from most uses.”

However, this government offers no compensation to the affected Ontarians and adds insult to injury by using the landowner’s own tax dollars to mount these illegal cases that are in fact not expropriations, but extortions. This behaviour has become the de facto standard in our new and improved Ontario. In Junker the Court concluded:

“…there is reason to be vigilant that such a significant impairment of property rights is carefully exercised within the bounds of proper statutory authority.”

Further on in the Court’s examination of the Gilmor case, a mandate to prohibit landowners from exercising their rights to their land became clear:

“To the extent that there was any discussion by either the Tribunal…or the NVCA’s expert…that the present case would set a bad precedent for future developments…”

Obviously, there is some administrative policy at play that is hidden from public scrutiny. The Court goes on to conclude:

“This is a far cry from studying the actual impact of this actual development…The only expert who actually did site-specific measurements was the Gilmor’s and his evidence was not contradicted…Had there been a bona fide concern…The NVCA did not pursue the matter.”

So, regardless of any evidence at hand, any proposed solution or anything else, the Conservation Authority will deny permission because that’s what they now do.

In a nutshell, not only does this government extort property rights, but it also extorts the economic benefits our communities and families would receive from what the Court classified as “benign” developments, such as building a home.

Finally, this decision is precedent setting because the Gilmors were awarded costs by the Divisional Court. Interestingly, the Court acknowledged the award at the higher end of the spectrum for a total of $33,175. The awarding of costs becomes even more significant considering the Conservation Authority was denied costs at both the Tribunal Court and again at Divisional Court. Regardless, this decision and award should instruct all Conservation Authorities to purge themselves of all self-serving fanatics on their payrolls and get back to the basics of science, managing their statutory objects and respecting the taxpayers they serve.

Going forward, the award of costs in this case may prove to be the most significant tool for landowners. This is because Ontario now has a binding decision instructing the Conservation Authorities to bear the costs of their own administrative behaviours and policy misinterpretations:

“…the Tribunal’s reasons indicate that it did indeed proceed from an unreasonable and fundamentally erroneous interpretation of the governing NVCA Regulation.”

These costs will in turn get passed back to the taxpayer, which in turn should instruct the government to curtail municipal funding of Conservation Authorities.

However, there is one disturbing caveat. The Wynne government is currently reviewing the Conservation Authorities Act with the goal of “updating and enhancing” it. Given their track record of administrative policy and of producing more legislation than any other government in history, this likely means that they intend to legalize the extortion of property rights in a revised Conservation Authorities Act. We can only hope I am wrong about this, but as the Superior Court instructed, we need to stay vigilant.

The important thing to remember is that the Conservation Authorities are no longer the government, nor are they an agency thereof. They are now an independent service provider similar to Ducks Unlimited. However, as a legacy agency of the Ministry of Natural Resources, they continue to be mandated by the Provincial Policy Statement and funded by the taxpayer.

It’s no wonder they are so fundamentally screwed up. In effect, Conservation Authorities are now a political arm of the governing Liberal Party of Ontario, paid for by all of us.

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