Submission to the Standing Committee on the Legislative Assembly by Elizabeth Marshall

Published June 1, 2016
Elizabeth Marshall

Elizabeth Marshall

On May 11, Elizabeth Marshall, OLA Director of Research attended the Standing Committee on the Legislative Committee regarding Bill 100, the supporting Ontario’s Trails Act.  Some revisions have been made to the Bill. You can view the revisions as well as the Hansard Transcripts (May 4th is available) at http://www.ontla.on.ca/web/committee-proceedings/committee_business_transcripts.do?locale=en&BillID=3338+&CommID=141&BusinessType=Bill&detailPage=transcripts.

What follows is Liz’s summary of her presentation and her written submission to the Committee, including a redraft of the Bill for the Committee’s consideration.

Yesterday I attended Committee, on Bill 100, please see attached for what was part of the OLA presentation.  After reading the included document, the Committee could ask questions.  The NDP, Liberals and PCs (not sure of their names) had 3 minutes each to ask and receive a response.  The first question from the NDP was:

“Mr. Hillier, the past president of the OLA…” I didn’t let him continue before I stated that Mr. Hillier had not been a member of the OLA for quite some time now.”  The NDP MPP smiled and said “I’m not finished yet…Mr. Hillier said that you (me) are wrong and that there is absolutely nothing wrong with Bill 100.  Are you saying Mr. Hillier is wrong?”  My response was “Yes Mr. Hillier is wrong and I will take the Supreme Court of Canada over Mr. Hillier any day.”

Their second question was “Did government ask for any input from the OLA on Bill 100?”  I responded that the OLA had not been asked for any input into or on Bill 100 during consultation on the Bill.  He then stated “Well that settles it then, they didn’t hear from those who would know.” (or something along those lines)

Then the Liberals had MPP Woo ask questions.  She states:  “Ms. Marshall, you state on page 5 of your document that no input came from the people.  The government had input from 255 stakeholder groups at 5 separate regional meetings in the province.”  My statement to her was:  “Exactly where were these meetings?”  She said 1 was in Thunder Bay, 1 in Ingersol, on 2 native reserves (and I can’t remember the 5th place).”  My response was:  “You didn’t have any meetings in the Muskoka area which is the hub of the majority of the trail system in Ontario.  You had meetings with 255 stakeholder groups and yet you had no input from the people most affected, the private property owners.  Stakeholders are not private property owners – stakeholders are incorporated associations – not the people, so you received no information from those people that are the key ingredient to the entire trail system…the private property owners.”

Then she went on to say that Bill Walker, MPP had 4 lawyers and 1 retired judge go over Bill 100 and they say there is nothing wrong with the Bill.  I responded by saying that Kurtis Andrews, a lawyer in the Ottawa area, voluntarily gave the OLA his opinion and that Terrance Green, also a lawyer in the Ottawa area, voluntarily gave the OLA his opinion, and the Supreme Court of Canada had already ruled on the topic, so I will take the 2 lawyer’s opinions and the Supreme Court of Canada over any of Mr. Walker’s legal opinions, after all the Supreme Court of Canada had already ruled.  I also told MPP Woo to obtain a definition of “easement” from Duhamine’s legal web-site, which also supports our opinion on easements.

By this time the time was up but the PCs had not had their time to ask questions, so I got an extension.  MPP Clark asked about Patrick Connor and the Almont meeting and could I explain about that meeting.  I said that Mr. Connor was allowed to voice his opinion but that he did not have a very good reception by those in attendance.  It would seem Mr. Connor had been very protective of the Bill and of the Trail Associations, but had, like those who created Bill 100, forgotten about the most important element – the private property owner.  I also stated that I had hoped that Mr. Connor had learnt, from other meetings he had attended, that the most important ingredient is the private property owner because without the private property owner they have nothing.  Mr. Clark then asked how many members the OLA has.  I explained from what I have been told, we have 22 county groups, but that we don’t have memberships as they might understand memberships.  We have family memberships, so as an example the Carleton L.A. has 1,500 memberships, so based on those numbers the OLA has literally thousands upon thousands of members in the province.

Even though the NDP had already had their time to question me they had 2 more questions/statements.  First was – would removing section 12 from Bill 100 make it any better?  I said it was an improvement, but the Bill would still be there.  The second was should Bill 100 die?  My final statement of the day was – from what I have been told, by the people most affected by this Bill, either the Bill dies or the trails do.

Long and short, I received an extra few minutes.  I doubt it will do any good, but it is what it is.

INTRODUCTION

 Presenter:  Elizabeth Marshall.  I am not a lawyer and do not give legal advice. I have published many reports respecting various pieces of Legislation, etc., as well as a book, on property rights. I do Legal Research for Green and Associates Law Offices and have had my research used by other law firms. I am the Director of Research for Ontario Landowners Association and do legislative research for elected officials including MPs, MPPs, municipal Councils, etc.   In 2012 I was elected to the Board of Directors of the Canadian Justice Review Board and in 2014, I was appointed to the Steering Committee of the International Property Rights Association.

Because Bill 100 does not meet the standards of construction for legislation we have re-written Bill 100.  In the re-write we have, in Schedule 1 (the Ontario Trails Act, 2015), created a Preamble.  We have removed un-needed sections and clarified certain aspects of the Bill.

We have also removed the amendment to the Trespass to Property Act because this is of little benefit to the private property owner, as it is government which receives the fines.  In regards to “trespass” there are sections in the Criminal Code which can be enforced and there is also tort action which can be used for compensation to the ownerAny amendments to the Trespass to Property Act should be done separately for clarity.  We have also removed the amendment to the Public Lands Act as that amendment has nothing to do with private property or the trails crossing private property.

SUBMISSION

Below, we respectfully submit, to the Committee the re-write of Bill 100, for Committee to consider.  We would ask that consultation meetings be set up throughout rural Ontario, to hear from “those who are most directly affected by this bill,” meaning the private property owners. 

In the original Schedule 1, the Ontario Trails Act, 2015, section 1 the “Interpretation” has only a “Purpose Clause.”  In the construction of legislation the “purpose clause” cannot be part of the interpretation of the Act.    A “purpose clause” is defined as:

PURPOSE CLAUSE – An introductory clause to a statute explaining its background and stating the reason for its enactment.[1]

And “interpretation” is defined as:

INTERPRETATION – 1.  The process of determining what something, esp., the law or legal document means, the ascertainment of meaning to be given to words or other manifestations of intention.[2]

Therefore the “purpose clause” must be a completely different section in the Act.

In our re-write we have removed the majority of eligible bodies as most of them have very little to do with “trails” and more to do with conservation easements.  This can be done under the Conservation Lands Act, if the private property owner is inclined to do so.  Therefore there is no need for them being included in the definitions of “eligible bodies” or “nominees.”

Section 1 subsection (2) specifies that all previous agreements, verbal or written, become void at the passing of this Act and that there must be all new easement agreements entered into.

Section 1 subsection (3) is to ensure that any new agreements are designated as easements and the title of the agreement states the agreement is an easement and the word “easement” must be identified in large bold font, at the top of the document.

Section 2 is the Purpose clause of the Act and added to it is part 5, the true purpose, which is to create easements for the creation and protection of the trail system.

Section 3 subsection (1) is protection of aboriginal rights under section 35 of the 1982 Constitution.  Section 3 Subsection (2) is protection of the private property owner’s rights under section 26 of the 1982 Constitution.

Section 4 (1) and (2) is for the Minister of Tourism to declare a “trails week” to be acknowledged in the province.

Section 5 allows the Minister of Tourism to recognize a trail as an Ontario trail of distinction by a plaque to be installed at the entrance of the trail.

Section 6 (1) and (2) allows the Minister to voluntarily classify certain trails and this may be done only after an easement has been voluntarily granted and registered under the rules of easements in section 9.

Section 7 the Minister must create a plan for the establishment of trails through means of voluntary easement agreements which includes the input of the trail associations, the municipalities and most importantly the private property owners for the management and promotion of the trails.  The Minister must also do progress reports under this section.

Section 8 specifies what the Minister must publish on the Ontario Government website regarding trails of distinction, trail classifications and any plans established inclusive of the Minister’s reports.

Section 9 lays out the rules for the easements for the protection of the private property owner as well as the eligible body or nominee.  This includes that the easements shall only be voluntary and non-transferable; shall only be allowed after full disclosure by the eligible body or nominee to the private property owner; that the agreement must have at the top in the title the word “easement” in larger bold font easily distinguishable to the reader, and only after a survey has been completed by a certified surveyor.

Section 10 explains that section 9 is applicable to any land owned by, or to lands administered under, the Conservation Authorities Act, the Public Lands Act or the Provincial Parks and Conservation Reserves Act, 2006.

Section 11 expresses that the Lieutenant Governor in Council may make regulations describing aboriginal communities or organizations for the purposes of section 1 under the “eligible body” definitions.

Section 12 and Section 13 are the same as the original sections 15 and 16.

Bill 100 is not conducive to a trail system in Ontario and is government trying to regulate something which had not, historically, needed to be regulated.  In the words of Kurtis Andrews, lawyer:  “it is obvious that the sole purpose of the bill is to take away property rights from property owners.”  Had government been sincere in their efforts to create a Bill which is beneficial to both the private property owner and the various trail associations, etc., government should have had consultations with all parties involved.  This did not happen nor is it happening now.

There are no scheduled meetings in the rural areas to hear what the private property owners have to say regarding this Bill.  Even the Hon. Mr. Potts, during debate on Bill 100 stated:  “ …we need to hear more from … those who are most directly affected by this bill, ….”, as Committee has been called within 9 business days of Bill 100 passing second reading, in Toronto for 2 days only, where is the input from those directly affected?  This did not give people time to make application to present at Committee.  Considering there are over 65 other Bills waiting for committee presentation, one would think there is some kind of an emergency included in this Bill to receive this expedited treatment.  Also the Minister of Agriculture could have advised his fellow MPPs that this is the time when those from the farming communities are planting their crops and are on a very restricted schedule.  It would seem government, and those supportive of this Bill, do not want to hear from, “those who are most directly affected by this bill.”

In support of our concerns we cite the Supreme Court of Canada ruling Hill v. Nova Scotia (Attorney General), [1997] 1 S.C.R. 69, which has been cited some 79 times, showing that easements can be verbal agreements created between two parties and enforceable on those parties.  The vagueness in the Ontario Trails Act, 2015, has allowed for the implementation of all forms of easements to be registered.  From Hill v. Nova Scotia:

“The representation that he had an interest in land, which closely resembles an easement… In the present case, …, it does not matter so much what was said.  What is critical is what was done; and what was done was the construction and maintenance of access ramps. ….  This became known as the doctrine of part performance — the “part” performance being that of the party who had, to the knowledge of the other party, acted to his detriment in carrying out …his own obligations (or some significant part of them) under the otherwise unenforceable contract. …  A verbal agreement which has been partly performed will be enforced.”[3]

There is available, to private property owners, the option of leasing their land to various trail associations, etc., ensuring that there is no confusion that the property owner had not granted an easement.  Rural property owners and the farming community are quite familiar with leasing land for crops, etc.  Of course, the trail associations would have to pay some form of rent to the private property owner and that the lease would be at the instruction of the property owner and not the eligible bodies or nominees.  As for insurance the Occupier’s Liability Act would still apply.  Suffice it to say the trail associations and the property owners have 2 choices:  easements or leases.  This is for the protection of the private property owner and the trail association.

Thank you for your time and consideration on this matter.

Bill 100                                                      

An Act to enact the Ontario Trails Act, 2015 and to amend various Acts

CONTENTS

1. Contents of this Act
2. Commencement
3. Short title
Schedule 1 Ontario Trails Act, 2015
Schedule 2 Motorized Snow Vehicles Act
Schedule 3 Occupiers’ Liability Act
Schedule 4 Off-Road Vehicles Act

Her Majesty, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows:

Contents of this Act

  1. This Act consists of this section, sections 2 and 3 and the Schedules to this Act.

Commencement

  1. (1)  Subject to subsections (2) and (3), this Act comes into force on the day it receives Royal Assent.

Same

(2)  The Schedules to this Act come into force as provided in each Schedule.

Same

(3)  If a Schedule to this Act provides that any provisions are to come into force on a day to be named by proclamation of the Lieutenant Governor, a proclamation may apply to one or more of those provisions, and proclamations may be issued at different times with respect to any of those provisions.

Short title

  1. The short title of this Act is the Supporting Ontario’s Trails Act, 2015.

SCHEDULE 1 ONTARIO TRAILS ACT, 2015

 PREAMBLE

Whereas, certain classes of persons owning private land situate in the province of Ontario have expressed an interest to allow an easement to travel across their land and to allow for the utilization and maintenance of a trail to be used by a respectful public;

And whereas various trail associations and groups; agencies, boards or commissions; bands within the meaning of the Indian Act; aboriginal communities or organizations; conservation authorities; charities and etc., have expressed an interest in creating easements to travel across both private and public land to allow for the utilization and maintenance of a trail to be used by a respectful public;

And whereas it is advantageous for the prosperity of the tourism industry, doing business in the province of Ontario, that certain rules need to apply to the creation of easements for the utilization and maintenance of trails and for the protection of the private land owner and the various entities who promote the use of said trails;

And as the Courts have determined that an agreement, either written or verbal, is an easement of which the use of land which cannot require an outlay of money;

Therefore, Her Majesty, by and with the advice and consent of the Legislative Council, enacts as follows:

Interpretation

Definition

  1. 1. (1) In this Act,

“agreement” in this Act is an easement specifically stated in bold recognizable font in the title of a written contract between the owner, the eligible body, the donee or the nominee;

“boat” includes a motorboat, rowboat, canoe, punt, sailboat or raft;

“conveyance” means a vehicle, boat or aircraft;

“crossing” means a place or structure (as on a street or over a river) where pedestrians or vehicles cross; [4]

“donee” in the Act means,

(a)  one to whom a gift is made; the recipient of a gift.

(b) the person to whose favor a power of appointment is created or reserved.

and for greater certainty a person who has been given a power of appointment, i.e.,the power to dispose of someone else’s property;[5]

“easement” must be capable of forming the subject matter of a grant, and

(a)  both the person giving and the person receiving the benefit of the easement must have legal capacity, and

(b) the easement cannot be vague nor can it require an outlay of money, with the exception of fencing easements under and governed by the Line Fences Act, R.S.O. 1990, and

(c) shall be created  by contractdeed but not by verbal agreement even if the latter is followed by some type of action which supports the evidence of a verbal agreement;[6] and

(d) shall be non-transferable to any other eligible body or nominee;

(e) all easements must be surveyed by the eligible body or nominee by a registered surveyor at the cost to the eligible body or nominee;

(f) all easements are subject to be annually renewed or cancelled at the discretion of the property owner;

“eligible body” means,

(a)  a band within the meaning of the Indian Act (Canada), for recreational trail purposes;

(b)  a municipality within the meaning of the Municipal Act, 2001, for recreational trail purposes;

(c)  a recreational club, association or group created by statute that is a registered charity or not-for-profit under the Income Tax Act (Canada) which uses trails for recreational purposes;

“grant” means the passing of a thing from one person to another by an instrument, it comprehends feoffments, bargains and sales, gifts, leases, easements, &c, of which a person that gives or sells something is also granting;[7]

“instrument” means contracts, deeds, statutes, wills, Orders in Council, orders, warrants, schemes, letters patent, rules, regulations, bye-laws, whether in writing or in print, or party in both; in fact, any written or printed document that may have to be interpreted by the courts;[8]

“interest” means a legal share in something; all or part of a legal or equitable claim to or right in property <right, title and interest>.  Collectively, the word includes any aggregation of rights, privileges, powers and immunities, distributively, it refers to any one right, privilege, power or immunity;[9]

“land” includes buildings and any estate, term, easement, right or interest in, to, over or affecting land; (“bien-fonds”);

“Letters Patent” means “writing of the sovereign, sealed with the Great Seal, being a matter of record, used to record an agreement, contract, a command, title, property, etc., granting a sole right that is due to a person by just claim, legal guarantee, or moral principle, a recognized and protected interest the violation of which is a wrong; the interest, claim, or ownership that one has in tangible or intangible property that is open, because they are not sealed up, but exposed to open view, with the great seal pendant at the bottom, and are usually directed or addressed by the Sovereign to all his or her subjects at large.[10]

“may” the expression “may” is permissive;

“Minister” means the Minister of Tourism, Culture and Sport or such other member of the Executive Council to whom the administration of this Act may be assigned under the Executive Council Act;

“nominee” means delegate, appointee, consignee, representative, select trustee who is:

(a)  a person or entity who is requested or named to act for another, such as an agent or trustee, or

(b) a potential successor to another’s rights under a contract, or

(c) the executor proposed by a person in a will is a nominee until officially appointed by the judge after the testator has died, and the will is submitted for probate, or

(d) a person chosen by convention, petition or primary election to be a candidate for public office;[11]

“municipality” includes a local board of a municipality and a board, commission or other local authority exercising any power with respect to municipal affairs or purposes, including school purposes, in an unorganized township or unsurveyed territory; (“municipalité”)

“officer” means a police officer, police constable, bailiff, constable, or other person employed for the preservation and maintenance of the public peace or for the service or execution of civil process having sworn the oath to the Queen;

“occupier” means

(a) a person with a license to occupy under section 20 of the Public Lands Act, or

(b) a person acting as a nominee as described under section 1 of this Act, or

(c) a person acting as an eligible body as described under section 1 of this Act, or

(d) a person who is not the owner as described under section 1of this Act, or

(e) a person who is in physical possession of premises who is not the owner as described under section 1 of this Act, or

(f) a person who is not the owner as described under section 1 of this Act, and has responsibility for and control over the condition of premises or the activities there carried on, or control over persons allowed to enter the premises, even if there is more than one occupier of the same premises;

“owner” means the registered owner of land under the Registry Act or the Land Titles Act. (“propriétaire”);

“shall” ” is to be construed as imperative;

“trail” means a route followed for a particular purpose not exceeding a width of 10 meters or a width agreed upon by the owner, inclusive of a buffer area;

“vehicle” means any kind of vehicle that is driven, propelled or drawn on land or ice by any kind of power, including muscular power, and includes the rolling stock of a railway.

Previous agreements cancelled

(2)  For greater certainty all agreements for the use of private land for trail purposes prior to the enactment of this Act shall be as of the day of the passing of this Act null and void;

Easement declaration

(3)  All agreements are easements and must be identified as such in the title of the agreement in large bold font for ease of recognition and full disclosure shall be performed by the eligible body and the nominee to the land owner.

Purposes

  1. 2.The purposes of this Act are as follows:
  2. To increase awareness about and encourage the use of trails.
  3. To enhance trails and the trail experience.
  4. To protect trails for today’s generation and future generations.
  5. To recognize the contribution that trails make to quality of life in Ontario.
  6. To create easements for the protection of the trail system in and of Ontario.

 Existing aboriginal or treaty rights

  1. (1)For greater certainty, nothing in this Act shall be construed so as to abrogate or derogate from the protection provided for the existing aboriginal and treaty rights of the aboriginal peoples of Canada as recognized and affirmed in section 35 of the Constitution Act, 1982.

 Existing rights of owners or patented rights –

Other rights and freedoms not affected by Charter

(2)  For greater certainty, nothing in this Act shall be construed so as to abrogate or derogate from the protection provided for and by Letters Patent issued by the Sovereign for and to the people as owner of the land or an estate in land, as defined in section 1, of Canada, as recognized and affirmed in section 26[12] of the Constitution Act, 1982.

Trails in Ontario

Trails Week

  1. 4.  (1) Subject to subsection (2), the week beginning on the Monday immediately before the first Saturday in June in each year is proclaimed as Trails Week.

 Minister may declare a different week

(2)  For any particular year, the Minister may declare that Trails Week begins on any day of the year other than the Monday immediately before the first Saturday in June.

 Ontario trails of distinction

  1. 5.(1) The Minister may recognize a trail as an Ontario trail of distinction by a plaque to be installed at the entrance of the trail.

 Consultation, etc.

(2)  In the course of establishing a process for recognizing Ontario trails of distinction, establishing a trail classification system, reviewing the Ontario trails plan, the Minister shall,

(a)  consult with property owners and persons or entities who have an interest in the easement for the trail;

(b)  consider any government policies and programs that affect or relate to,

(i)  that affects the interests of the owner, or

(ii)  that the Minister has been advised by another minister are relevant.

Ontario legislation and policies

(3)  The Minister shall ensure that the Ontario trails plan, any trail classification system, and any process for recognizing Ontario trails of distinction are not inconsistent with Federal legislation or statute or Ontario legislation or provincial government policies or the rights of the private property owner that affect or relate to trails in Ontario or trail-related activities.

 Trail classification system

  1. 6.  (1)  The Minister may after an easement has been voluntarily granted and registered under the rules of easements in section 9 establish a trail classification system including only those trails which has been established by easement under section 9 and 10.

 Compliance voluntary

(2)  Compliance with a trail classification system established under this section is voluntary.

 Ontario trails plan

  1. 7.  (1) The Minister shall maintain an Ontario trails plan for only those trails established by voluntary easement and registered under the rules as laid out in section 9 and 10,

(a)  that sets out directions for the establishment, management, promotion and use of trails in Ontario; and

(b)  that is guided by consultation with local landowners and stakeholders and municipalities that are planned and used in an environmentally and economically responsible manner and that enhance the prosperity of all Ontarians.

Periodic review of plan

(2)  At such times as the Minister considers appropriate or within 5 years the Minister shall conduct a review of the Ontario trails plan.

Progress reports re plan

(3)  The Minister shall at such times as the Minister considers appropriate, prepare reports about the progress made in implementing the Ontario trails plan.

Requirement re initial report

(4)  The Minister shall prepare an initial report no later than the second anniversary of the day this section comes into force.

Public access to information

  1. 8.The Minister shall publish the following on a Government website:
  2. The name of every trail recognized as an Ontario trail of distinction under section 5.
  3. The trail classification system, if one is established under section 6.
  4. The Ontario trails plan and every progress report required under section 7.

 Easements

Rules re easements

Nominee of eligible body

  1. (1) For the purposes of this section a reference to an eligible body includes a nominee of the eligible body who is acceptable for registration in the land registration system as a registered owner of an interest in land.

Granting of easements

(2)  An owner of land may voluntarily grant after full disclosure of an eligible body or nominee a non-transferable easement as defined in section 1, with or without covenants, to one eligible body or nominee which can hold an interest in land,

(a)  for the preservation, enhancement or management of the use of or access to the trail;

(b)  for the creation, maintenance or management of the trail for public use.

Easement reserved by a body

(3)  When an eligible body is the owner of the land and the eligible body conveys land, it may reserve an easement for a purpose referred to in subsection (2).

Same

(4)  A reference in any Act or regulation to easements granted under this Act also applies to easements reserved in accordance with subsection (3).

Registration of easement

(5)  An eligible body shall pay all costs involved with registering the easement against the land affected in the proper land registry office and once registered the easement and any covenants contained in the easement run with the land against which it is registered.

Not valid unless registered

(6)  An easement is not valid unless it is registered under subsection (5).

Term

(7)  An easement is valid for the term specified in it.  The term must be specified as a period of months, years or in perpetuity.

Validity

(8)  An easement registered on title to land, including any covenants contained in the easement, is valid whether or not the eligible body owns appurtenant land or land capable of being accommodated or benefited by the easement or covenant.

Release

(9)  The owner or the eligible body may execute a release of an easement and shall provide a signed copy of the release to the eligible body or the owner of the land.

Same, registration

(10)  The eligible body shall register the release of the easement against title to the land affected in the proper land registry office and pay all costs to release the easement.

Enforcement of easement

(11)  An eligible body may enforce an easement that is registered on title to the land, including any covenants contained in the easement, against the owner of the land and against any subsequent owner of the land against which it is registered.

Same

(12)  The owner of land may enforce against the eligible body any easement or covenants contained in an easement that is registered on title to the land.

No merger of registered easement

(13)  If an eligible body becomes the owner of land in respect of which it has the benefit of a registered easement,

(a)  the easement does not merge in title; and

(b)  if the eligible body transfers the land, the easement and any covenants continue to run with the land.

Rights preserved

(14)  Nothing in this section limits a right or remedy that a person may have under any other Act, at common law or in equity in respect of an easement or a covenant.

 Application of s. 9

  1. 10.  Section 9 shall apply to any land owned by or to lands administered under the Conservation Authorities Act,the Public Lands Act or the Provincial Parks and Conservation Reserves Act, 2006.

 General

Regulations

  1. The Lieutenant Governor in Council may make regulations prescribing aboriginal communities or organizations for the purposes of clause (d) of the definition of “eligible body” in section 1.

 Commencement

  1. The Act set out in this Schedule comes into force on a day to be named by proclamation of the Lieutenant Governor.

 Short title

  1. The short title of the Act set out in this Schedule is the Ontario Trails Act, 2015.

SCHEDULE 2

MOTORIZED SNOW VEHICLES ACT

  1. Section 22 of the Motorized Snow Vehicles Act is amended by adding the following subsection:

Same

(2)  For greater certainty, the following do not constitute a fee for entry or activity of the person for the purposes of clause (1) (a):

  1. A fee charged for a purpose incidental to the entry or activity, such as for parking.
  2. The receipt by a non-profit recreation club or association of a benefit or payment from or under the authority of a government or government agency.

Commencement

  1. This Schedule comes into force on the day subsection 1 (1) of Schedule 3 to the Supporting Ontario’s Trails Act, 2015 comes into force.

SCHEDULE 3

OCCUPIERS’ LIABILITY ACT

  1. (1)  Section 4 of the Occupiers’ Liability Act is amended by adding the following subsection:

Same

(3.1)  For greater certainty, the following do not constitute a fee for entry or activity of the person for the purposes of subclause 4 (3) (c) (i):

  1. A fee charged for a purpose incidental to the entry or activity, such as for parking.
  2. The receipt by a non-profit recreation club or association of a benefit or payment from or under the authority of a government or government agency.

(2)  Subsection 4 (4) of the Act is amended by striking out “and” at the end of clause (e), by adding “and” at the end of clause (f) and by adding the following clause:

(g)  portage routes.

Commencement

  1. This Schedule comes into force on a day to be named by proclamation of the Lieutenant Governor.

SCHEDULE 4

OFF-ROAD VEHICLES ACT

  1. Section 20 of the Off-Road Vehicles Act is amended by adding the following subsection:

Same

(2)  For greater certainty, the following do not constitute a fee for entry or activity of the person for the purposes of clause (1) (a):

  1. A fee charged for a purpose incidental to the entry or activity, such as for parking.
  2. The receipt by a non-profit recreation club or association of a benefit or payment from or under the authority of a government or government agency.

Commencement

  1. This Schedule comes into force on the day subsection 1 (1) of Schedule 3 to the Supporting Ontario’s Trails Act, 2015 comes into force.

EXPLANATORY NOTE

The Bill enacts the Ontario Trails Act, 2015 and makes amendments to the Motorized Snow Vehicles Act, the Occupiers’ Liability Act, the Off-Road Vehicles Act.

EXPLANATORY NOTE

SCHEDULE 1
ONTARIO TRAILS ACT, 2015

SEE SUBMISSION 1 – 13 FOR EXPLANATORY NOTE ON the Ontario Trails Bill, 2015

 SCHEDULE 2
MOTORIZED SNOW VEHICLES ACT

Currently, section 22 of the Motorized Snow Vehicles Act provides that every person who drives or rides on a motorized snow vehicle or is being towed by such a vehicle on any premises is deemed, for the purposes of subsection 4 (1) of the Occupiers’ Liability Act, to have willingly assumed all risks where the person is not being provided with living accommodation by the occupier and no fee is paid for the entry or activity of the person, other than a benefit or payment received from a government or government agency or non-profit recreation club or association. A new subsection 22 (2) provides that, for greater certainty, the following do not constitute a fee for entry or activity of the person:

  1. A fee charged for a purpose incidental to the entry or activity, such as for parking.
  2. The receipt by a non-profit recreation club or association of a benefit or payment from or under the authority of a government or government agency.

 SCHEDULE 3
OCCUPIERS’ LIABILITY ACT

Currently, subsection 4 (3) of the Occupiers’ Liability Act specifies circumstances in which a person who enters on certain premises is deemed to have willingly assumed all risks and in which a modified duty of care applies. One of those circumstances is where a person enters certain premises for the purpose of a recreational activity and the person is not being provided with living accommodation by the occupier and no fee is paid for the entry or activity of the person, other than a benefit or payment received from a government or government agency or a non-profit recreation club or association. A new subsection 4 (3.1) provides that, for greater certainty, the following do not constitute a fee for entry or activity of the person:

  1. A fee charged for a purpose incidental to the entry or activity, such as for parking.
  2. The receipt by a non-profit recreation club or association of a benefit or payment from or under the authority of a government or government agency.

The Schedule amends subsection 4 (4) of the Act, which specifies premises for the purposes of subsection 4 (3), to include portage routes.

 SCHEDULE 4
OFF-ROAD VEHICLES ACT

Currently, section 20 of the Off-Road Vehicles Act provides that every person who enters premises on an off-road vehicle or while being towed by an off-road vehicle is deemed, for the purposes of subsection 4 (1) of the Occupiers’ Liability Act, to have willingly assumed all risks where the person is not being provided with living accommodation by the occupier and no fee is paid for the entry or activity of the person, other than a benefit or payment received from a government or government agency or non-profit recreation club or association. A new subsection 20 (2) provides that, for greater certainty, the following do not constitute a fee for entry or activity of the person:

  1. A fee charged for a purpose incidental to the entry or activity, such as for parking.
  2. The receipt by a non-profit recreation club or association of a benefit or payment from or under the authority of a government or government agency.

[1] Black’s Law Dictionary, 9th Edition, 2009, p. 1356.

[2] Black’s Law Dictionary, 9th Edition, 2009, p. 894.

[3] Hill v. Nova Scotia (Attorney General), [1997] 1 S.C.R. 69

[4] http://www.merriam-webster.com/dictionary/crossing

[5] Black’s Law Dictionary 9th Edition, 2009, p. 562.

[6] http://www.duhaime.org/LegalResources/RealEstateTenancy/LawArticle-67/Easements-Covenants.aspx

[7] Dictionary of Jurisprudence, J.J.S. Wharton, Esq., 1847-48, pg. 279.  New Law Dictionary:  and Glossary: Containing Full Definition of  The Principal Terms of the Common and Civil Law, …Compiled on the basis of Spelman’s Glossary, By Alexander  M. Burrill, Counsellor at Law, p. 548.

[8] Black’s Law Dictionary, 9th Edition, 2009, p. 869

[9] Black’s Law Dictionary, 9th Edition, 2009, p. 885

[10] Dictionary of Jurisprudence, J.J.S. Wharton, Esq., 1847-48, pg. 593-594]to something.  Also see Crown land patent:  Private property patented land that is privately owned.

http://www.duhaime.org/LegalDictionary/A/AbAbsurdo.aspx   or

http://www.tbs-sct.gc.ca/pubs_pol/dcgpubs/TB_G3/reg-1-eng.asp#1

New Law Dictionary:  and Glossary: Containing Full Definition of  The Principal Terms of the Common and Civil Law, …Compiled on the basis of Spelman’s Glossary, By Alexander  M. Burrill, Counsellor at Law, p. 672.

[11] http://legal-dictionary.thefreedictionary.com/nominee

[12] Other rights and freedoms not affected by Charter

  1. The guarantee in this Charter of certain rights and freedoms shall not be construed as denying the existence of any other rights or freedoms that exist in Canada.

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