Sunday, December 4, 2016

The OMB under review (again)


Ontario is in the final stages of the latest public review of the 110 year-old Ontario Municipal Board.

Municipal Affairs Minister Bill Mauro — together with Attorney General Nasir Yaqvi, who is involved because the court-like OMB reports through the AG’s office — released a consultation document on OMB reform in October. [Note 1]

The consultation document sets out a number of changes the government is considering based on what it's heard during previous consultations on the future of the OMB and since the current review was launched back in June. These views include:

  • people feel they don't have a meaningful voice in the process
  • more weight should be given to municipal decisions
  • OMB decisions are unpredictable 
  • hearings cost too much and take too long
  • there are too many hearings; more mediation should be used 

The document asks 24 questions about the proposed changes and calls for feedback by December 19, 2016.

One change that is not being considered is abolishing the Board altogether. “The Ontario government sees a continuing need for the OMB in Ontario’s land use planning system”, says the discussion paper. [Note 2]  Rather, the focus is on changes to the Board’s scope (what it deals with) and effectiveness (how it operates) within that system.

The most interesting discussion has to do with scope.  Scope in terms of which matters end up coming before the Board, and which don’t, as well as the nature of the Board’s review of those matters — whether the Board continues to deal with these matters de novo (by considering the same issue that was before the initial decider fresh); or whether its authority is restricted in some way, giving the municipality’s or province’s decision more weight.

What could this mean for the conservation of cultural heritage in the province?

Hard to say, but probably not much.

* * * * *

As context, let’s review the ways the Ontario Municipal Board gets involved with cultural heritage resources.

While it also has a role in a number of non-planning matters, the Board’s primary function is that of an appeal body on land use planning issues, and most disputes that come before the Board are appeals under the Planning Act.  The Planning Act provides for appeals to the OMB from decisions on the use of a wide range of planning tools, any of which may have a heritage component or impact.  These include (with approximate figures for the five with the greatest number of OMB files in 2014/15):

  • Official Plans/amendments — 180 files
  • zoning changes — 350 files
  • minor variances — 575 files, by far the largest!
  • consents (for severances) — 235 files
  • subdivision plans — 80 files
  • refusal to approve demolition in demolition control areas (designated for the purpose of protecting residential property)
  • refusal to remove holding by-laws
  • interim control by-laws
  • site plan controls
  • Minister’s zoning orders  [Note 3]

In hearing an appeal of a municipal or provincial decision on these types of planning matters, the Board’s job first and foremost is to ensure that the decision is “consistent with” the provincial planning policies in the Provincial Policy Statement.  These policies include the five Cultural Heritage Policies in section 2.6 of the PPS, among them the oft-cited policy 2.6.1: “Significant built heritage resources and significant cultural heritage landscapes shall be conserved.”  The Board also looks for compliance with the Official Plan (approved by the province or an upper-tier municipality) and any other applicable plans, such as the Growth Plan for the Greater Golden Horseshoe or the Niagara Escarpment Plan.

The OMB also hears appeals from decisions on the exercise of some (although not all) heritage mechanisms under the Ontario Heritage Act:

  • refusal to approve the demolition of a building or structure designated under Part IV of the Act
  • refusal to approve the alteration of property, the demolition of a building or structure, or new construction in a heritage conservation district designated under Part V
  • designation of a heritage conservation district
  • designation of a heritage conservation district study area (for the purpose of prohibiting or restricting alteration and development for up to a year)

* * * * *

A major thrust of the provincial discussion paper is reminding the reader what the province has already done to address the concerns with the OMB cited above. It’s almost as if the province is saying, we’ve made many, many changes previously but for those who think there’s still a problem we’re prepared to consider some further things… what do you think of these ideas?

To my mind, the ideas for the most part amount to little more than tinkering.

A prime example has to with the “scope” issues.  The changes the province is floating include:
  • limiting appeals to the OMB on more provincial land use planning decisions: Minister’s zoning orders could not be amended by the OMB; provincial decisions on OPs could not be appealed to the OMB (appeal of entire OPs or their approval by the province is already verboten; this change would simply allow the province to say which parts of its decision, i.e. on which parts of the plan, could not be appealed) 
  • no appeal of a municipality’s refusal to amend a new secondary plan for two years 
  • no appeal of a municipal interim control by-law

No bold moves here — like, say, removing appeals to the OMB on minor variances or consents, major items contributing to the OMB’s heavy workload (not that this would be a good idea necessarily, but it’s not even considered). [Note 4]

Now consider the discussion of the question of de novo hearings and giving more weight to municipal decisions.

As the paper points out, since 2007 the OMB has been required to "have regard to” the earlier decision that is being appealed. (This has always struck me as somewhat disingenuous: how could an appeal body not pay attention to the decision it was asked to overrule?)

Now the government is looking at a further “possible change” to move the Board away from de novo hearings.  “If this were to occur, it would mean the OMB would focus on the validity of the decision under appeal instead of seeking the ‘best’ decision.”  How might this be achieved?  The documents suggests two ways:
  • requiring the OMB to review municipal/approval authority decisions on a standard of reasonableness. That means OMB hearings would examine whether the original decision was within a range of defensible outcomes within the authority of the municipality/approval authority.  If the decision is found to have been made within that range of outcomes, the OMB would not be able to overturn it
  • authorizing the OMB to overturn a decision made by a municipality/approval authority only if that decision does not follow local or provincial policies. This would mean that the Board would have to be convinced that the planning decision under appeal is contrary to local or provincial policies. Examples might include approvals of proposals for development in a flood prone area or a provincially significant wetland, or an official plan that does not meet the Growth Plan for the Greater Golden Horseshoe intensification targets [Note 5]

Oh dear.  These strike me as ways of just doubling down on the current “have regard to” requirement.  With the first… well, more time will be spent on arguments over whether the decision under appeal is “reasonable” — and therefore not within the Board’s power to overturn — than on the planning issue itself.

The second is no better.  In a policy-led planning system, which is supposedly what we have, what kind of restriction is it to tell the OMB it can overturn a decision “only” if the decision doesn’t follow provincial or local policies.  Seriously, who goes before the Board and argues, “I know this decision complies with the OP and the PPS, but it’s bad so please overturn it”?

I suspect the government knows this and is just trying to appear to be open to change.  Unlike in other areas, it is careful not to say that it is proposing these reforms, just that here are some ideas “if” there is to be a shift away from de novo hearings.

I for one hope there isn’t.

Thoughts?



Note 2: Page 3. The main reason seems to be that the existence of the OMB minimizes impacts on the courts. Also note that municipalities have had the power since 2007 to establish their own appeal bodies to deal with consent and/or minor variance appeals. Doubtless because of the expense involved, none have so far done so, although Toronto apparently has the process underway.

Note 3: Source for numbers: “Planning Act Files Received by the OMB by Application Type” on page 11 of the discussion document. The total number of OMB Planning Act files for 2014/15 was 1,535.

Note 4: See Note 2 re the scope of municipal appeal bodies.

Note 5: Page 19.

Thursday, November 17, 2016

Heritage easements 401 — Easements for (almost) all

We’ve been looking at easements for heritage conservation purposes and how these evolved in Ontario.

Easements and their close cousin covenants — agreements conferring rights over another’s land or property for specific purposes — can be used by anyone for almost any (legal) end.  But the only kind that beat the old common law limits and stick over the long haul are statutory easements — that is, agreements where the parties involved and the public policy objectives to be served are set out in statute.

Because of the public interests at stake, our laws are fussy about who gets the power to enter into such arrangements. With respect to easements for heritage conservation, the Ontario Heritage Act, as we’ve seen, gives these powers to only the Ontario Heritage Trust and local municipalities.

Does that mean only the Trust and municipalities can hold heritage easements?

Well, no.

For one thing, the OHA permits the Trust and municipal councils to sign easements —and then hand them over to others.  Subsection 22 (3) says:

Any easement or covenant entered into by the Trust … may be assigned to any person and such easement or covenant shall continue to run with the real property, and the assignee may enforce the easement or covenant as if it were the Trust .…  [Note 1]

In its 40-year history of holding easements, the Trust has done this just twice.  In one case an easement was assigned to the National Trust for Canada in Ottawa, and in the other case the assignee was the Frontenac Heritage Foundation in Kingston.

I know of only one instance where a municipal easement was assigned. The property involved was none other than Union Station … and the assignee the Government of Canada!  [Note 2]

* * * * *

One might ask why respected non-governmental heritage organizations — the National Trust for Canada, the Frontenac Heritage Foundation and others like Architectural Conservancy Ontario — should not have the ability to take easements for heritage conservation purposes.

The short answer is that cultural heritage groups, perhaps too preoccupied with regulatory approaches and government action, have not shown much enthusiasm for gaining these powers for themselves … and so missed the boat when the door was thrown open to greater access to the easement tool.

By comparison, organizations concerned with the use of easements for protecting natural and ecological resources seized an opportunity.

Remember from last time how in the early 1980s the Ontario Heritage Foundation (now OHT) moved into the natural heritage field, largely owing to its broad easement-holding ability?  The Foundation began working with NGO partners like the Federation of Ontario Naturalists, the Nature Conservancy of Canada, Ducks Unlimited and the Bruce Trail Association to protect places of natural significance through easments and outright acquisition.  Soon natural heritage organizations, including the nascent land trust movement, began agitating for the power to hold easements themselves.

For a time in the early 1990s it looked like the long-proposed reform of the Ontario Heritage Act would be the vehicle for extending statutory easement powers to suitable NGOs for all types of cultural and natural heritage, as well as for agricultural preservation and other purposes.  But with the agonizingly slow pace of the OHA revisions the natural heritage forces shrewdly found another outlet.

In 1994 the then Ministry of Natural Resources moved forward with amendments to an obscure piece of legislation.  The Conservation Land Act (CLA) was essentially transformed into an all-purpose easements statute … and the OHF’s virtual monopoly on natural heritage easements was broken.


The CLA gives easement powers to a “conservation body”, defined to encompass a very wide array of government and non-government organizations. The bias was clear — the word “cultural” does not appear and, tellingly, the French version translates “conservation body” as “organisme de la protection de la nature.” [Note 3]

Certainly the ability of non-government conservation bodies to acquire easements has been a huge boon and contributor to the burgeoning land trust movement in the province. [Note 4]


* * * * * 

The last word goes to the latest Ontario easements legislation — the Ontario Trails Act, 2016. The Act includes an extensive section on easements, part of which reads:

An owner of land may grant an easement, with covenants, to one or more eligible bodies,
(a) for the preservation, enhancement or management of the use of, or access to, all or a portion of the land for purposes relating to trails or to activities relating to trails;
(b) for the creation, maintenance or management of trails for public use; or
(c) for the purposes as may be prescribed by the regulations made under this Act.

[Note 5]



Note 1: Subsection 37 (4) gives local councils the same ability.

Note 2: The City of Toronto entered into an easement agreement with Toronto Terminals Railway, the former owner of Union Station. When the city acquired the property in 2000 this municipal easement was assigned to the federal government and heritage staff from Public Works and Government Services Canada and Parks Canada administer the agreement's heritage approvals. The OHT provided advice to the feds on the easement mechanism and how to manage the transfer of the property.

Note 3: The Conservation Land Act defines “conservation body” as:

(a) the Crown in right of Canada or in right of Ontario,
(b) an agency, board or commission of the Crown in right of Canada or in right of Ontario that has the power to hold an interest in land,
(c) a band as defined in the Indian Act (Canada),
(d) the council of a municipality,
(e) a conservation authority,
(f) a corporation incorporated under Part III of the Corporations Act or Part II of the Canada Corporations Act that is a charity registered under the Income Tax Act (Canada),
(g) a trustee of a charitable foundation that is a charity registered under the Income Tax Act (Canada), or
(h) any person or body prescribed by the regulations.

The Act goes on to say that easements may be entered into:

(a) for the conservation, maintenance, restoration or enhancement of all or a portion of the land or the wildlife on the land;
(b) for the protection of water quality and quantity, including protection of drinking water sources;
(c) for watershed protection and management;
(d) for the conservation, preservation or protection of the land for agricultural purposes;
(e) for the purposes prescribed by the regulations made under this Act; or
(f) for access to the land for the purposes referred to in clause (a), (b), (c), (d) or (e).

Note clause (e): to date no other “purposes”, like cultural heritage conservation, have been prescribed, but this remains theoretically possible.

Note 4: There are now over 30 land trusts in Ontario, members of the Ontario Land Trust Alliance (OLTA). The OLTA website defines a land trust as follows:

The term Land Trust refers to non-profit, charitable organizations which have as one of their core activities the acquisition of land or interests in land (like conservation easements) for the purpose of conservation.

The hallmark of a land trust is the direct action they take to protect the local land base, and that they hold those lands or conservation easements in trust for future generations. Land Trusts and conservancies are generally local in scope and operation, but may be provincial, regional or even national. Most land trusts focus on conserving the biological values of land, but across the continent land trusts have been established to protect scenic, historical, agricultural, and recreational lands as well.

See http://olta.ca/land-trust/.

Note 5: See section 12 of the Act. As with the Conservation Land Act, there is the potential for a regulation that prescribes additional “purposes.”  https://www.ontario.ca/laws/statute/16o08#s12s1

Friday, November 4, 2016

Heritage easements 301 — The OHF goes natural, and municipalities get in the game

By the early 1980s the Ontario Heritage Foundation’s easements program was well-established.  But its scope, like the properties the Foundation owned and its other programs, was pretty much confined to cultural heritage.  This was about to change.

From 1975 the Foundation has had a broad mandate for the “conservation, protection and preservation of the heritage of Ontario.” “Heritage” was not defined; although, with respect to its “trust” objectives, the OHF was given powers to acquire, hold, manage, etc. property of “historical, architectural, archaeological, recreational, aesthetic, and scenic interest.” [Note 1] The power to acquire easements — a form of property — was not otherwise limited.

With the encouragement and support of senior management at the then Ministries of Natural Resources and Culture and Recreation, OHF board chair John White and other new board members decided it was time for the Foundation to expand activities into the natural resource field. [Note 2]

Probabaly the key reason for this move was that the Foundation was the sole provincial agency with the power to acquire heritage easements.

Seizing on the words "recreational" and "scenic" in its legislation — and maybe stretching them a little?— the Foundation embarked on its first forays into natural heritage. And the first natural heritage easement soon followed— the Misery Bay property, a 120 hectare (300 acre) forested wetland on Manitoulin Island bordering Misery Bay Provincial Park. The easement was registered in November 1983.


Shoreline, Misery Bay

* * * * *

While the OHF pursued its heritage easements program with gusto — first on the cultural side, then on the natural side as well — at the municipal level things were very slow to develop.  While local municipalities had been given powers to acquire easements on property of “historical or architectural” importance under section 37 of the OHA, that didn’t mean they knew what to do with them. [Note 3]

Largely this was because municipalities also had designation powers — powers they had actually sought! (And, tellingly in terms of the provincial enthusiasm for easements, powers the province itself didn’t have.)

But a heritage designation, as people soon came to realize, was not as strong as a heritage easement, particularly with respect to demolition.  Until the 2005 changes to the OHA, designation offered only temporary demolition controls.  Even now, a municipality’s refusal to approve an owner’s request to demolish can be overridden by the Ontario Municipal Board.

So easements provided a further, practically iron-clad protection against demolition.

Unlike a regulatory, designation approach, however, there needed to be a lever to compel… er, entice the signing of an easement agreement.  And for a long time municipalities did not make use of the tools they had.

The first municipal easements were mostly the result of provincial (OHF) grants for preservation projects: in cases of built heritage properties not considered to have provincial significance and warrant a Foundation easement, the grant was made conditional on both municipal designation and a municipal easement.  Not surprisingly, municipalities needed the province’s help with satisfying the unfamiliar easement requirement — and in developing their easement agreements they relied almost to the letter on the Foundation’s prototype agreement.

A big boost to municipal easement activity came in 2001, again because of provincial policy.  The rules for the new Heritage Property Tax Relief Program, which incorporated a provincial financial contribution, included requirements for designation and a heritage easement or similar agreement.

The City of Toronto, a leading advocate for the HPTR program, had been a relatively early adopter of heritage easements.  In 1980, following two years of work, the former Toronto Historical Board developed a procedure for municipal heritage easement agreements.  The first Toronto easements were signed that year.  Since then the city’s easements program has really taken off, with Toronto entering into hundreds of built heritage easements, usually as a condition of planning and other development approvals.  Other larger municipalities have followed suit.


A 1980 municipal easement protects the House of Industry on Elm Street, Toronto

Unfortunately for those of us who like hard numbers, just how many (and which) municipalities have acquired easements — and how many — is hard to get a handle on.  The OHA requires that information on designations be provided to the Ontario Heritage Trust, but there is no such requirement for easements.  [Note 5]

Next time: Who else holds heritage easements in Ontario?


Note 1: Interestingly the word “heritage” did not appear in the OHF’s original 1967 Act, except n the name of the Foundation. “Archeological” was added to the list of types of property in the 1975 OHA; “natural” was finally added only in 2005.

Note 2: Chief among these was G.H.U. (Terk) Bayly. Terk was a former deputy minister of the old Department of Lands and Forests, predecessor of the Ministry of Natural Resources, and had served as Secretary of Cabinet. He succeeded John White as chair of the Foundation in 1986. For more on the genesis of the Foundation’s role in provincial efforts to protect natural areas see Gerald Killan’s Protected Places: A History of Ontario's Provincial Parks System (Queen’s Printer, 1993), especially pages 313-315.

Note 3: In section 37, as in the designation sections of the Act, the old “architectural or historical” terminology has been replaced with “cultural heritage.”

Note 4: See my 2015 OHA+M post on heritage property tax relief:
Note 5: One estimate puts the number of municipal easement “programs” at around 50, but I wouldn’t even hazard a guess at the total number of municipal easements. By contrast, thanks to the Ontario Heritage Trust, we do know the current number of OHT easements: 260.  And how they break down by type:
  • Built heritage: 186
  • Natural heritage: 52
  • Archaeological: 6
  • Bruce Trail: 15
  • Hybrid: 1 (Ruthven, near Cayuga)

Wednesday, October 19, 2016

Heritage easements 201 — New easements, and an old covenant

One of the early heritage easements in Ontario protects Victoria Hall in Cobourg.

Portico of Victoria Hall, Cobourg

The parties to this agreement, which runs in perpetuity (forever or, less dramatically, indefinitely), are the Ontario Heritage Foundation, now the Ontario Heritage Trust, and the Town of Cobourg, the owner of Victoria Hall.

The easement goes back to 1979, four years after the OHF gained the power to acquire heritage easements in the then-new Ontario Heritage Act.  The agreement was signed as a condition of a grant by the Foundation for repair and restoration work.  And Victoria Hall needed a lot of that in the 1970s.  The provincial grant to the project was huge — some $400,000!  [Note 1]


The OHF’s statutory easements were not, interestingly, the first effort in the province to protect heritage property through private, contractual means.  That honour goes, I believe, to the Architectural Conservancy of Ontario — and the property in question was none other than the Barnum House.

Barnum House, Grafton

As many will know, preservation of the 1819 Barnum House, outside Grafton, and just 10 or so kilometres east of Victoria Hall, was the driving force behind the creation of the Conservancy in 1933.  The ACO acquired and restored the house but by 1958 its ownership and operation proved too much for the struggling little group (I’m speculating here) and the Conservancy transferred the property to the local Township of Haldimand.  The township managed to continue to run Barnum House as a museum, but again the needs of one of Ontario’s most iconic early buildings far exceeded local means.  The future of the property was finally secured by transfer of ownership to the Ontario Heritage Foundation in 1982.

But while willing to give up the house the ACO was not anxious to relinquish all control.  And so (at Eric Arthur’s instigation?) a restrictive covenant was attached to the 1958 deed.  The covenant stipulated that changes to the house could not be made without the Conservancy’s permission.

This covenant was still there when the OHF came along in the early 1980s.

Now, if you read “Heritage Easements 101” from last time, you’ll know that a covenant like this was not valid and could not be enforced against a future owner.  For one thing the ACO did not own any adjoining lands that could benefit from the covenant.

But the OHF did not want any loose ends, including any appearance that the ACO might be in a position to constrain what the Foundation could do to the Barnum House.

And so it happened that I as a new staff member was dispatched to talk to the ACO board… and to talk them into “lifting” their restrictive covenant on the property.  When looking back on this, I cringe a little at my “I’m from the government and I’m here to help you” attitude.  They didn’t exactly welcome the idea with open arms; but after some hesitation the ACO did agree to release any legal interest they may have had in the property.  The transfer was concluded soon after.



The St. Lawrence Block, Port Hope, is protected by a 40 year-old OHT easement (signed July 7, 1976)

Back to statutory easements…  With the passage of the OHA and based in large part on American precedents, staff, board members and lawyers of the Ontario Heritage Foundation put together Ontario’s first template easement agreement.  [Note 2]  This template was followed in the Victoria Hall and other early easements — and indeed, with periodic revisions and updates, became the prototype for all of the many OHF/OHT built heritage easements since. [Note 3]

From the start key provisions of the easement agreement have included:
  • prohibition of demolition of the structure and alteration of listed heritage features, without prior approval
  • prohibition on changes to the property generally, without prior approval
  • requirement to maintain the structure
  • requirement to insure the structure
  • requirement to rebuild in the event of significant damage
  • no restrictions on sale or use
  • right to inspect the property upon written notice to the owner
  • right of entry to the property to rebuild, or to remedy a breach of the agreement, where the owner fails to do do.
As we learned last time, some of these (the first two) would be considered “negative” provisions — requiring the owner not to do something — and some “positive” — requiring the owner to do things and incur the resulting expense.  Most could be considered to be “covenants” — in the sense of promises to do/not so something — and a few (the last two) “easements” — in the original sense of permitting access to and activity on the owner’s property for limited purposes.

But with statutory easements none of these old distinctions matter any more.  [Note 4]



The first heritage easement signed in Ontario (June 22, 1976) protects the Newburgh Academy in Newburgh


Note 1: Until the 2005 overhaul of the Ontario Heritage Act, the Foundation/Trust needed the Minister’s approval for its restoration grants. I have it on good authority that in the case of the early and enormous Victoria Hall grant, and presumably at the Minister’s behest, the provincial contribution was actually approved in Cabinet. To this day the Trust requires  Minister’s approval for property acquisition and disposition, including easement interests, but this is a formality.

Note 2: According to my source, the architects of both the heritage easement provisions in the OHA and the template easement agreement were Bert Lawrence and Brock Grant. Bert Lawrence, a former provincial cabinet minister under Premier William Davis, became the first chair of the beefed-up Ontario Heritage Foundation in 1975. Brock Grant was the esteemed ministry lawyer who advised the Foundation’s board and staff for many years.

Note 3: The OHT currently holds 186 built heritage easements.

Note 4: The statutory protective agreement, referred to as simply an “easement or covenant” in the OHA, came to be called a heritage easement or conservation easement probably because of the traditional easement-like provisions they included (even if these were more minor in nature) and because covenants typically were part of another agreement (a deed) rather than stand-alone. Also because that’s what the American precedents were called.

Thursday, September 29, 2016

Heritage easements 101 — Easements come to Ontario

Writing about the Rockwood Academy a few posts back I mentioned my first job with the province — one with responsibility for the pioneering provincial heritage easements program.

Before that, in 1979, I spent a summer with the Stratford Local Architectural Conservation Advisory Committee (LACAC).  At some point my boss, the redoubtable city/county archivist Jim Anderson, brought to my attention a bill to amend the Ontario Heritage Act.

The amendment concerned a minor change to the easement provisions of the Act — this was the very first amendment to the OHA since its passage four years before. [Note 1]

It was also the first time I’d heard of heritage easements.

Easements are one of our two principal protection mechanisms (designation of course is the other).  They’ve been around for 40 years now, but where did they come from?

Unlike many other parts of the 1975 OHA, the heritage easement powers were an innovation without antecedents from Ontario or other provinces.  They were inspired by and based on precedents from south of the border, where easements for preservation purposes go back at least to the late 1940s.  Being voluntary agreements to protect (usually) private property, easements were an approach particularly suited to the American perspective and experience, where government regulation of private property for public benefit is more suspect than in Canada. [Note 2]

Historically, easements — also called restrictive covenants — evolved as a type of contract between two parties with respect to the use of land.  Say Party A wants some access or control over the property of Party B (typically a neighbour).  Party A could of course offer to buy the property.  But for a number of reasons an outright purchase might not be feasible or even desirable.

Instead Party A could try to negotiate the acquisition of an easement, one giving Party A the desired access or control over the property of Party B.  And not just Party B, but anyone who acquired the property after them: the easement is intended to outlast a particular individual’s ownership and “run with the land.”

Over the centuries the courts developed rules to prevent abuses. For the easement to run with the land and be legally enforceable against later owners it had to meet strict requirements:
  • The purchaser or new owner of Party B’s property had to have notice of the easement
  • The easement had to benefit Party A’s (adjoining or “appurtenant”) property in some way — by providing river access, for example, or an unobstructed view
  • The controls or obligations the easement imposes on Party B could not include a positive burden (requiring expenditure to meet it, like maintaining a bridge), but only negative burdens (requiring Party B not to do something, like obstruct Party A’s view by constructing buildings or planting trees).
(The parcel of land that benefits from the easement — Party A’s property — is sometimes called the “dominant tenement”; the “servient tenement” is the land — Party B’s property — that is subject to or encumbered by the easement.)

But if Party A is not a neighbour or does not even own property, there can be no valid easement.

This is where statutory easements come in — laws are passed to get rid of the old common law limitations and provide greater flexibility and scope.  But only for certain parties and for certain purposes!

Take electricity production and distribution, for instance.  The Electricity Act, 1998 says that “an easement in favour of a generator, transmitter or distributor for the purpose of generation, transmission or distribution does not have to be appurtenant or annexed to or for the benefit of any specific parcel of land to be valid.” [Note 3]

Likewise with heritage conservation. Section 22 of the OHA says:

(1) Any easement or covenant entered into by the [Ontario Heritage] Trust may be registered against the real property affected in the proper land registry office.

(2) Where an easement or covenant is registered against real property under subsection (1), such easement or covenant shall run with the real property and the Trust may enforce such easement or covenant, whether positive or negative in nature, against the owner or any subsequent owners of the real property and the Trust may enforce such easement or covenant even where it owns no other land which would be accommodated or benefited by such easement or covenant. (emphasis added)

You can see how subsection 2 keeps the old requirement of notice (by requiring registration on title), but lifts the other two limitations: the taboo on “positive” burdens and the requirement of owning benefiting land. [Note 4]

Section 37 of the Act — giving local municipalities the ability to acquire statutory easements — has similar wording. 

But not identical: there is an important difference between the provincial (OHT) and municipal easement powers.  While municipalities may acquire easements “for the conservation of property of cultural heritage value or interest”, the scope of the provincial power is broader — essentially qualified only by the Trust’s broad mandate for “the conservation, protection and preservation of the heritage of Ontario.”  In other words, the Trust easement power extends beyond cultural heritage.

We’ll see next time what this has meant for the evolution of provincial and municipal easement programs.

Note 1: The amendment anticipated a potential conflict between the controls provided by an easement and a heritage designation on the same property. Identical subsections 22(4) and 37(5) were added; the former now says: “Where there is a conflict between an easement or covenant entered into by the Trust and section 33 or 34, the easement or covenant shall prevail.”

Note 2: Part of this is the Fifth Amendment to the U.S. Constitution, added in 1791, which includes a prohibition on government taking private property for public use without “just compensation.” There is no comparable provision in the Constitution of Canada.

Note 3: See section 42.1.

Note 4: When the Ontario Heritage Foundation (as the Trust was then known) began signing easement agreements on properties around Ontario and presenting them for registration, the reaction of the local land registrar was frequently, what’s this? Quoting chapter and verse from section 22 was usually persuasive.