I am frequently approached by individuals who believe that the property rights granted through Crown Patents supersede the powers of provincial and municipal governments or agencies to regulate those lands.
The question boils down to whether a Crown Patent insulates the landowner from compliance with or prosecution under municipal by-laws or regulations issued by any other provincially-enacted government body, such as a conservation authority. The answer, according to the leading cases in Ontario, is no.
A Crown Patent is a legal document used to transfer land held by the federal or provincial government to a private owner. Dating back to the 1790s, Crown Patents are commonly the first transfer of title to land from government to private ownership. Many Crown Patents had restrictions or conditions on the private property rights. For example, some patents state that the granted property shall only be used for agricultural purposes or that the private owner will not have certain rights, such as mineral rights, tree-cutting rights, or the right to construct roads through the property.
Whether a Crown Patent can supersede provincial or municipal authority has been specifically considered by the courts in recent years. The courts have consistently pointed to section 92(13) of the British North America Act, 1867, which allocates jurisdiction over "Property and Civil Rights" to the provinces, and concluded that this gives the provinces (and by extension, municipalities) broad powers to pass laws that affect property and associated rights.
A leading case is the 2012 decision of the Court of Appeal for Ontario, R v. Mackie.1 In this case, the defendant was charged with operating an archery range on his property without a permit, contrary to the Niagara Escarpment Planning and Development Act. The Niagara Escarpment Commission issued an order to Mr. Mackie and then prosecuted him for failure to comply. His defence was that provincial legislation is not applicable to the property given a 1798 Crown Patent which granted the right to earn a livelihood from the land, which superceded all municipal and provincial laws and regulations. The trial court disagreed with this position, citing the fact that under the British North America Act, the provinces were given specific authority to enact legislation, including to control the use of land within the province. The defence failed at trial and on an initial appeal. Mr. Mackie sought leave to bring a second appeal to the Court of Appeal for Ontario. In dismissing the application for leave, the Court of Appeal agreed with the trial judge’s interpretation of s.92 of the British North America Act, namely that the “legislative authority to control the use of land generally undoubtedly belongs to the Province under s. 92 of the B.N.A. Act."2
The Court of Appeal further commented that nothing in the language of the Crown Patent is there support for the contention that the Crown Patent and the rights conferred under it displace otherwise validly enacted provincial legislation regulating land use.3
This principle (answer to the question) has been upheld in other cases in Ontario.
In 2016, the Ontario Superior Court of Justice dismissed an application for a permanent injunction to prevent the Town of Fort Erie from removing property or chattels from privately owned property pursuant to the Town’s Property Standards By-Law, passed under the Building Code Act 1992.4 In this case, the Court rejected an argument that the absence of restrictions on use in the Crown Patent meant that provincial laws could not restrict the use and held “there is nothing in the Crown Patent which suggests government cannot legislate that municipalities have regulatory powers.”5
In a 2016 decision in Port Hope v. Elgasuani,6 the Divisional Court, Ontario’s intermediate appellate court, considered a property owner’s submission that “since the original grant of the land was from the Crown and the municipality had never owned the land, the municipality had no right to control what he did with the property.” The Divisional Court rejected this submission, holding that a “Crown Patent does not limit or reduce the Provincial government’s powers to regulate land use. Under the British North America Act, 1867 and all subsequent amendments thereto, the provinces have exclusive jurisdiction to legislate in relation to property and civil rights. Municipalities have been delegated authority by the Province of Ontario to limit property rights through the Act and the Planning Act.”7
It is important to realize that the courts in Ontario have held that the rights and privileges set out in any Crown Patent must be considered together with Canadian constitutional law and the applicable statutory regime in order to understand the property owner’s actual property rights.
1 R. v. Mackie, [2012] O.J. No. 4718 (C.A.).
2 R. v. Mackie, [2012] O.J. No. 4718 (C.A.), at paras. 4-5.
3 R. v. Mackie, [2012] O.J. No. 4718 (C.A.), at para. 8.
4 Desmarais v. Fort Erie (Town), 2016 ONSC 1750, 2016 CarswellOnt 4166.
5 Desmarais v. Fort Erie (Town), 2016 ONSC 1750, 2016 CarswellOnt 4166, at para. 71.
6 Port Hope (Municipality) v. Elgasuani, [2016] O.J. No. 1860 (Div. Ct.), at para. 14.
7 Port Hope (Municipality) v. Elgasuani, [2016] O.J. No. 1860 (Div. Ct.), at para. 14
