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Line Fences (Ontario)
Legal Guide
Chapter 1 - Overview- Overview
- Types of Law Involved
(a) General
(b) Line Fences Act (LFA)
(c) Municipal
(d) Statutory Powers Procedures Act
(e) Foresty Act
(f) Tort Law
- LFA Substantive Issues
- The Municipal Role
(a) Opting Out of the LFA
(b) Exception to Opting Out: Former Railway Rights-of-Way
(c) Municipal Role Where Not Opted-Out of LFA- By-Laws Limiting Winter Arbitrations
- By-laws re Height, Description and Generally re Fences
- Fence-Viewer Fees
(d) Freedom of Information
- The Role of Tort Law
1. Overview
The seemingly-sedate legal area of fencing can give rise to surprising emotion, primarily between adjoining land-owners. It was even, in the murder case of R v Manchuk (Ont CA, 1937), the original grievance leading to, well ... obvious later events.
Readers coming to this website needing guidance can reduce any unfortunate frustration if they first keep in mind that this present Isthatlegal.ca Legal Guide is about "line fences", that is, fences running along mutually-recognized boundaries between properties. It deals with the issues of construction, maintenance and cost allocation regarding fences where there is no dispute over the boundary location.
What this Legal Guide does not address is situations where there is a land boundary dispute by reason of an adverse possession claim, a disputed survey, a misplaced 'line' fence - or for any other reason. These are discussed only briefly in the section dealing with fence "trespass" (s.5 below). Adverse possession is not addressed here at all.
2. Types of Law Involved
(a) General
"Fence Law" - though a humble topic - involves a surprisingly wide range of law, including several provincial statutes, many municipal by-laws and even judge-made tort law.
(b) Line Fences Act
Provincially, the Line Fences Act (LFA) seeks to provide a standard regime for resolving disputes over erection, repair and removal of line fences (fences that run along the property line) and over trees which fall onto line fences (but NOT trees overhanging property lines or line fences). The bulk of this program deals with LFA procedures.
The starting principle behind the LFA is the right of landowners to erect a fence between their and adjoining properties:
Line Fences Act s.3
An owner of land may construct and maintain a fence to mark the boundary between the owner's land and adjoining lands. The LFA creates a set of rules, criteria and procedures to resolve the issues of shared stewardship and expense that this right creates.
There are three main fence-viewer procedures established in the LFA: arbitrations, certifications and determinations. Arbitrations are used where the issue is the construction or repair of a fence - they result in "awards", certifications are used where a party alleges complete default by another party - they result in "certificates" of default, and "determinations" are used when a party alleges incomplete or inadequate performance of an award.
(c) Municipal
The LFA also allows municipalities to opt out of the LFA almost entirely by passing their own by-law on the subject [Municipal Act, s.98; City of Toronto Act s.109]. As locally-established line fence procedures can vary widely, this Guide deals with the standard provincial LFA procedures used by most municipalities. Whether opting-out has occured can be checked with your local municipal office.
If the local municipality choses to remain under the standard LFA procedures established by the province then they still have some role in supplementary line fence law-making. As well, they are the chief day-to-day administrators under the LFA, primarily through appointed "fence-viewers".
(d) Statutory Powers Procedures Act
The LFA rules are supplemented by procedures set out in a general administrative procedural statute, the Statutory Powers Procedures Act (SPPA). The SPPA rules in effect act as a minimal set of "natural justice" rules to make sure that the procedures are fair.
While I have not found any case law where the courts have explicitly held that the SPPA applies to LFA proceedings, in the Divisional Court case of Piper v Harmer (1979) the court reviewed a situation where the SPPA was applied at the initial arbitration level and implicitly accepted this as proper.
This conclusion is further bolstered when we realize that SPPA involvement in any administative proceeding is triggered whenever an entity exercising a "statutory power of decision" is "required ... to hold or afford to the parties ... an oppourtunity for a hearing before making a decision." Section 7 of the LFA requires fence-viewers, on an attendence, to "... if required by either adjoining owner, ... hear evidence and may examine the owners and their witnesses on oath", it seems the best conclusion that SPPA procedures do apply to all LFA arbitrations, certifications, determinations where a fence-viewer attendence is required (including appeals).
If you are involved in serious line fence proceedings you may want to review SPPA rules, which are the subject of the Isthatlegal.ca Legal Guide linked here:
Administrative Law (Ontario)(SPPA)
(e) The Foresty Act and Boundary Trees
While the LFA does not define what a 'fence' is, it seems implicit that it refers to conventional, man-made fences [see LFA s.3, quoted in (b) above]. As such it does not apply where the boundary is marked out by trees.
However where a boundary line is marked out by trees, the Forestry Act contains some brief and straightforward provisions that may have a bearing on the situation:Forestry Act
10(1)
An owner of land may, with the consent of the owner of adjoining land, plant trees on the boundary between the two lands.
10(2)
Every tree whose trunk is growing on the boundary between adjoining lands is the common property of the owners of the adjoining lands.
10(3) Every person who injures or destroys a tree growing on the boundary between adjoining lands without the consent of the land owners is guilty of an offence under this Act. (f) Tort Law
However - when fences stray from property lines (and thus are arguably not themselves "line" fences), or where trees overhang property lines or line fences (but have not yet fallen), they leave the realm of legislated law and enter that of tort law: specifically, trespass law. I do not address this in this present Legal Guide but an excellent starting point for anyone interested in these issues is the interesting recent case of Hartley v Cunningham 2013 ONSC 2929 (CanLII) [affirmed by Court of Appeal in 2013].
3. LFA Substantive Issues
As mentioned before, landowners generally have the right to have a line fence between their and adjoining properties. The procedures for erecting, repairing and removing these fences, and for dealing with trees that fall on fence lines, are governed by procedures established under the Line Fences Act (LFA). [s.4,21]
The LFA regime allows a landlowner who "has not entered into a written agreement with the adjoining owner for sharing the costs of the construction, reconstruction or repair" (s.4) of a line fence to have the matter arbitrated. The purpose of the arbitration is to assign "what portion of the fence each owner shall construct, reconstruct or repair and maintain and keep up."
The same procedure applies for the removal of fences (s.12), and to a lesser extent, the disputes over trees falling on line fences (s.22(5)).
The LFA also sets out elaborate enforcement procedures to deal with situations where parties do not abide by arbitration orders ("awards").
4. The Municipal Role
(a) Opting Out of the LFA
As noted above. the LFA can however be mostly opted out of by local municipalities if they pass by-laws that deal with the issues covered by the LFA [Municipal Act, s.98; City of Toronto Act s.109] [for the exception see (b) below]. Call your local municipality and inquire as to their procedures. In such a case the primary source of law is found at the municipal level - and it is to there that you should look for guidance. As there are literally hundreds of municipalities I will not attempt to cover them here. s.26 Line Fences Act
This Act, except section 20, does not apply to land in an area that is subject to a by-law for apportioning the costs of line fences passed under the Municipal Act, 2001, or the City of Toronto Act, 2006, as the case may be. The relevant portion of the Municipal Act, 2001 (s.11) for fences provides that single-tier and lower-tier municipalities may pass by-laws regarding "fences and signs". A "single-tier" municipality is not a part of a larger municipality, and a "lower tier" is a part of a larger municipality. An "upper tier" municipality contains other smaller municipalities, for example a Regional Municipality.
(b) Exception to Opting Out: Former Railway Rights-of-Way
Section 20 of the LFA is an exception to the opting out by municipalities. It deals with lands that used to be railway rights-of-way and have since been conveyed in their entire width by the railway company.
The fencing duties respecting such former railway rights-of-way are covered in Ch.3, s.5: Special Rules for Public Use Lands: Former Railway Rights-of-Way.
(c) Municipal Role Where Not Opted-Out of LFA
However even if the municipality has not "opted out" of the LFA, they can still pass by-laws covering some issues related to line fences administration, listed below. An example of such a by-law is the City of Toronto Fence By-law.
- By-Laws Limiting Winter Arbitrations
The local municipality may pass a by-law limiting the scheduling of arbitrations or fence-views during any specified period between the first of November to the end of March [s.5(2)] (it can be less that this full period). Such matters shall be adjourned until after the periods expires [s.5(3)]. Such by-law shall not apply to
appeals before a referee [s.5(4)].
- By-laws re Height, Description and Generally re Fences
Municipalities may pass by laws "prescribing the height and description of lawful fences or otherwise regulating the construction of fences". If they do then any LFA
arbitration awards must comply with such by-law/s [s.8(3)].
It is within the terms of such a by-law that any disputes over the aesthetics of a fence (ie. colour, material, height, etc) of a fence would be focussed.
- Fence-Viewer Fees
Fence-viewer fees are established by by-law in each municipality [s.2].
(d) Freedom of Information
During the course of line fence proceedings many related documents are held in the office of the local municipal clerk. These documents are available for public review and copies may be provided under the terms of the Municipal Freedom of Information and Protection of Personal Privacy Act (MFIPPA)[s.31]. A $5.00 application fee applies, and copying charges will also be applied if significant number of copies are required. You will be pre-quoted the copying fees and expected to pay them before the copies are provided.
Under MFIPPA the clerk may withhold or edit some records from public access for various policy reasons. A review of the reasons for such withholding or editing is beyond the scope of this present Legal Guide.Case Note:
In Whitney v Information and Privacy Commissioner of Ontario [2013 ONSC 996 (CanLII)], a request under the Municipal Freedom of Information and Protection of Privacy Act (MFIPPA) for records of a line fence referee was denied on the basis that such referees are provincial appointees independent of the municipality. The records were therefore not under the 'custody or control' of the municipality. This conclusion would not however apply to fence-viewers, who are appointed and paid by the municipalities [LFA s.2].
5. The Role of Tort Law
The area of tort law that usually applies to fences is "trespass", or more accurately - the civil tort of trespass to property.
For instance, if a fence is built not on the property line - but actually strays onto a neighbouring property (and does so without any other legal justification) then the neighbour can both sue for damages in trespass, and/or seek a court order removing the fence. A court order prohibiting a trespass effectively "criminalizes" ongoing violation, for such orders may be enforced in civil courts by contempt of court proceedings.
Similarly, the situation where a tree overhangs or falls onto neighbouring property is a civil trespass problem. However, if the tree hits the line fence, the LFA becomes involved.
"Self-help" - ie. tearing the fence down or sawing the tree limb off - may be available as a remedy but is much riskier. I won't even begin to discuss it here.
While the Ontario Trespass to Property Act deals with related issues, it is primarily involved with ("quasi-criminal") prosecution for direct trespass by a person, and the posting of trespass notices to warn persons away from lands. As such it would have limited application to line fence situations.
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