EPIGRAPH
“The moment the idea is admitted into society that property is not as sacred as the laws of God, and that there is not a force of law and public justice to protect it, anarchy and tyranny commence.” — John Adams (1735–1826)
John Adams was one of the most influential Founding Fathers of the United States, a constitutional theorist, lawyer, diplomat, and the second President of the United States. More importantly, Adams was one of the earliest Western thinkers to articulate a modern theory of property rights.
He believed:
- Property rights are the foundation of personal liberty.
- Government’s first duty is to protect property from arbitrary interference.
- When property is no longer secure, free society collapses into tyranny or mob rule.
Adams lived through governments that attempted to seize property, regulate it arbitrarily, or override longstanding rights. He saw firsthand that once government begins treating property as something it can reshape at will, the rule of law disintegrates.
The warning from John Adams 250 years ago still resonates today. Canada inherited the same British constitutional tradition of, Crown Grants, Letters Patent, division of powers, and the principle that government must stay within the limits of the law.
This Insight by Adams is timeless:
“When government stops respecting property rights, it stops respecting the rule of law.”
What I will point out in this article is exactly how the warning from Adams, hundreds of years ago, is showing its ugly face in Ontario today. Municipal overreach, unlawful by-laws, and enforcement actions that ignore provincial statutes and protected agricultural rights.
SECTION 1 — What Legislation Authorizes Municipalities to Create Bylaws
Municipalities derive their authority from provincial legislation, primarily:
1. Municipal Act, 2001
- natural person powers (s.8)
- broad by-law powers (s.10, s.11)
- licensing powers (s.151)
- specific powers such as treecutting (s.135) and site alteration (s.142)
2. Planning Act
- Official Plans
- zoning by-laws
- development control
But Official Plans are policy, not law.
3. Building Code Act
Allows municipalities to enforce the Ontario Building Code, not exceed it.
4. Specific Provincial Statutes
- Fire Protection and Prevention Act
- Line Fences Act
- Conservation Authorities Act (limited enforcement powers)
5. Constitution Act, 1867 — s.92(8)
Gives the Province authority over “Municipal Institutions.” It does not give municipalities authority over private property.
Municipalities can only legislate where a statute expressly authorizes them to do so.
SECTION 2 — What Legislation Constrains Municipal Bylaws
Municipal by-laws are subordinate legislation. They must comply with:
1. Municipal Act s.14 — Conflict Rule
A by-law is without effect if it conflicts with:
- provincial legislation
- federal legislation
- regulations
- legislative instruments
A conflict includes frustrating the purpose of a provincial Act.
2. Croplife Canada v. Toronto (City), 2005 ONCA
This leading case confirms:
Municipalities cannot use broad powers to circumvent limits in specific powers.
Toronto tried to use “health and safety” powers to regulate pesticides, a matter governed by provincial law. The court struck it down.
3. Friends of Lansdowne Inc. v. Ottawa (City), 2012 ONCA
This case confirms:
Municipal by-laws benefit from a presumption of validity, but that presumption is rebuttable when the challenger shows the by-law exceeds statutory authority.
4. Charter of Rights and Freedoms
By-laws must comply with:
- s.2(b) expressive land use
- s.7 fundamental justice
- s.8 search and seizure
- s.11(a) notice of offence
- s.11(g) no retroactive offences
- s.15 equality
5. Constitution Act, 1867 — s.109
Protects Crown Grants and vested property rights.
6. Case Law
Courts consistently hold:
- municipalities must act within statutory limits
- by-laws cannot regulate matters assigned to provincial jurisdiction
- policy cannot be enforced as law
SECTION 3 — How Municipal Bylaws Must Be Interpreted
Courts apply the modern principle of statutory interpretation:
Read the words in their entire context, harmoniously with the scheme and purpose of the Act.
Key principles:
1. Municipalities are creatures of statute. (Clublink v. Oakville)
2. Specific powers limit general powers. (Croplife v. Toronto)
3. Purpose and substance matter.
Courts look at what the by-law does, not what it claims to do.
4. By-laws must not conflict with provincial legislation. (Municipal Act s.14)
5. Presumption of validity is rebuttable. (Friends of Lansdowne)
SECTION 4 — Statutory Limits on Municipal Bylaw Authority
Municipal by-laws must comply with:
1. Municipal Act limits
- s.14 conflict rule
- s.15 rule against circumvention
- s.8 broad powers interpreted within limits
- s.11 spheres of jurisdiction
2. Planning Act limits
Municipalities cannot regulate private property beyond land-use planning.
3. Building Code Act limits
Municipalities cannot exceed provincial building standards.
4. Conservation Authorities Act limits
Municipalities cannot regulate:
- wetlands
- watercourses
- floodplains
- erosion hazards
- natural heritage systems
5. Forestry Act limits
Municipalities cannot regulate:
- forestry operations
- woodland management
- timber harvesting
- forestry purposes
- good forestry practices
6. PPS 2024 limits
PPS is policy, not law.
7. Constitutional limits
Municipalities cannot override Crown Patent rights.
SECTION 5 — Policy Is Not Law
Municipalities frequently enforce:
- Official Plan policies
- PPS policies
- natural heritage strategies
- canopy targets
- biodiversity plans
- climate policies
These are policy documents, not legislation.
Municipalities cannot enforce policy unless:
- A statute authorizes it;
- A valid by-law is enacted;
- The by-law stays within statutory limits;
- The by-law does not conflict with provincial law;
- The by-law complies with the Charter.
Hamilton appears to have enforced policy as law in the Leytham case.
SECTION 6 — TreeCutting By-laws: Narrow Authority Under Municipal Act s.135
Section 135 authorizes municipalities to regulate:
- destruction of trees
- injury of trees
- permits for tree removal
It does not authorize regulation of:
- wetlands
- watercourses
- erosion
- habitat
- natural heritage
- environmental protection
- land use
- grading
- fill
- site alteration
- forestry operations
- woodland management
- Crown Patent rights
Municipalities routinely exceed s.135 — and Hamilton appears to have done so.
SECTION 7 — The Forestry Act and FFPPA Further Limit Municipal Authority
Forestry Act s.1 — Farms May Harvest Trees as a Crop
The Forestry Act explicitly recognizes silviculture and tree harvesting as legitimate land uses:
- “forestry purposes” include production of wood and wood products
- “good forestry practices” include harvest, renewal, and maintenance
- “agricultural operation” under the FFPPA includes silviculture and tree production
Tree harvesting on a farm is a protected agricultural activity.
Forestry Act s.11 — Municipal Forestry Powers Apply ONLY to Municipal Land
Section 11 authorizes municipalities to:
- acquire land for forestry purposes
- manage land for forestry purposes
- pass forestry by-laws only for land they own
This is decisive:
Municipal forestry powers do not apply to agricultural land.
Hamilton cannot use the Forestry Act to justify regulating Leytham’s private agricultural land.
Farming and Food Production Protection Act (FFPPA) Normal Farm Practices Are Protected
Under the FFPPA:
- “Agricultural operation” includes silviculture, tree production, and processing
- “processing” includes sawing, cleaning, treating, grading, packaging
- agricultural operations include draining, irrigating, cultivating land
- agricultural crops include tree crops, nursery stock, turf grass, maple syrup, etc.
- Section 2(1) states the FFPPA supersedes all other provincial Acts
This means:
Municipal treecutting by-laws cannot regulate tree harvesting on agricultural land.
Tree harvesting on Leytham’s farm is a normal farm practice, protected by provincial law.
SECTION 8 — Application to the Leytham Case
Hamilton’s enforcement appears to:
- ignore the FFPPA
- misapply the Forestry Act
- exceed s.135
- regulate protected agricultural operations
- regulate forestry operations on private land
- regulate land use through a treecutting by-law
- regulate natural heritage through a treecutting by-law
- regulate environmental conditions through a treecutting by-law
This is municipal overreach through statutory conflict.
Under Municipal Act s.14:
A municipal by-law is without effect to the extent of any conflict with a provincial statute.
Hamilton’s treecutting by-law conflicts with:
- the FFPPA
- the Forestry Act
- the Planning Act
SECTION 9 — Conclusion: Municipal Overreach Is Not Governance.
It Is a Breach of the Rule of Law
Municipalities do not sit above the law. They do not get to “interpret” provincial statutes into whatever powers they wish they had. They do not get to enforce policy as though it were legislation. They do not get to regulate forestry, agriculture, natural heritage, wetlands, watercourses, or Crown Patent rights unless a provincial statute explicitly gives them that authority and you may still be able to make a challenge.
When municipalities cross those boundaries, they are not “protecting the environment,” “managing growth,” or “promoting sustainability.” They could invariably be breaking the law.
They are acting outside their jurisdiction. They are frustrating provincial legislation. They are violating constitutional protections. They are trespassing on private property rights. They are abusing the enforcement powers entrusted to them.
The Leytham case exposes this problem with absolute clarity.
Hamilton did not simply misinterpret s.135. Hamilton replaced the law with policy, replaced statutory limits with environmental ideology, and replaced due process with administrative convenience. It used a narrow treecutting provision to enforce broad environmental controls that belong to the Province, and the Forestry Act, not the municipality.
This is not a minor error. This is systemic municipal overreach, and it strikes at the heart of private property rights in Ontario.
If municipalities can:
- enforce policy as law,
- apply mapping retroactively,
- regulate forestry operations,
- regulate agricultural land use,
- regulate natural heritage systems,
- override Crown Patent rights,
- ignore provincial statutes,
- and prosecute landowners under invalid by-laws,
then private property rights in Ontario are meaningless.
But they are not meaningless. They are protected by:
- the Constitution Act, 1867
- Crown Grants and Letters Patent
- the Municipal Act
- the Forestry Act
- the Planning Act
- the Conservation Authorities Act
- the FFPPA
- the Charter of Rights and Freedoms
- and over a century of Supreme Court jurisprudence
Municipalities do not get to rewrite this framework. They must operate within it.
And when they don’t, landowners must be prepared to challenge them, firmly, knowledgeably, and without apology.
The Leytham case is not just about trees. It is about the future of private property rights in Ontario. It is about whether municipalities respect the limits placed upon them by law. It is about whether rural landowners will be governed by legislation, or by ideology and policy masquerading as law.
The Ontario Landowners Association has always stood for one principle: Government must follow the law, not invent it.
Municipal overreach is not inevitable. It is challengeable. It is stoppable. And when landowners stand up, municipalities are forced to take notice.
In the end, one truth remains:
… “if you do not know what your property rights are
… then you have no property rights …”
Knowledge is your shield against bad law … if you choose to learn it.
Picking up your shield is Courage … if you choose to do it.