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Line Fences (Ontario)
Legal Guide
Chapter 3 - Special Rules for Public Use Lands- Ontario Lands
- Municipalities and Other Local Authorities
- Public Highways
- Unopened Road Allowances
- Former Railway Rights-of-Way
1. Ontario Lands
Generally, the Line Fences Act applies to the province of Ontario as a land owner [s.24(1)].
Exceptions are where the land involved has never been sold or otherwise alienated by the Crown at any previous time [s.24(2)].
As well, fence-viewer arbitrations involving Ontario as a party "shall not require the Crown [Ontario] to be responsible for more than one-half of the fence or to pay to the adjoining owner an amount exceeding 50 per cent of the cost of the fence."[s.24(3)].
2. Municipalities and Other Local Authorities
The Line Fences Act applies to lands owned by municipalities, conservation authorities, and "local boards" as defined under the Municipal Affairs Act [s.23(1) LFA]: s.1 Municipal Affairs Act
"local board" means a school board, municipal service board, transportation commission, public library board, board of health, police services board, planning board, or any other board, commission, committee, body or local authority established or exercising any power or authority under any general or special Act with respect to any of the affairs or purposes, including school purposes, of a municipality or of two or more municipalities of parts thereof; Municipalities may also enter into fence agreements with other landowners regarding the "construction, reconstruction, repair, maintenance and keeping up of line fences to mark the boundary of such lands [s.23(3)]. Such agreements may be registered and enforced like other fence agreements. See chapter 5: "Line Fence Agreements".
3. Public Highways
The Line Fences Act does not apply to lands constituting public highways, nor to "lands abutting a public highway that are held as a reserve by a municipality or other public authority" (to buffer the public highway from other lands) [s.25(1)]. However fence agreements made by municipalities with respect to these lands are enforceable. [s.25(2)].
In Grosvenor v. East Luther Grand Valley (Township) (Ont CA, 2007), the court upheld a lower court ruling that a municipality's attempt to avoid its 'former railway right-of-way' fencing duties [see s.5 below] by designating the land as an LFA-exempt "public highway" - was void as a "bad faith" exercise of its public highway authority. The conclusion was grounded in fact-findings that the intended purpose of the municipality's use of the land was recreational, and not for use as a highway.
4. Unopened Road Allowances
Where an unopened road allowance lies between two properties, fence viewers in an arbitration shall "divide the road allowance equally between the owners of the lands, and to require each owner to construct, keep up and maintain a just proportion of fence to mark the division line" [s.19(1)]. Basically, where possible, the fence-viewers should divide the road allowance in half between the owners for the purpose of establishing the route of the line fence.
It is important to note that no application for a fence-viewer arbitration that involves this splitting can be initiated without approval of the municipality in which the road allowance lies [s.19(2)].
5. Former Railway Rights-of-Way
(a) Sold to Abutting Owner
Where former railway right-of-way lands are sold to an abutting owner, then that owner has the same normal fence duties that otherwise apply in law, either under the Line Fences Act or any governing municipal by-law. That is, they have no duty to maintain any fencing along the former railway right-of-way borders that are now entirely encompassed within their own land - but they maintain the normal duties with respect to borders between their new land and land owned by others.
(b) Sold to Non-Abutting Owner
However, where a new purchaser of the entire width of the railway right-of-way is NOT the owner of abutting land, they have the legal responsibility for "constructing, keeping up and repairing the fences" along the former railway right-of-way borders IF the abutting owner is a "farming business" and if the farming business notifies the purchaser that they want such fencing constructed, kept up or repaired [s.20].
For these purposes a "farming business" includes those for which:- a current farming business registration is
filed under the Farm Registration and Farm
Organizations Funding Act, 1993, or
- the Agriculture, Food and Rural Affairs Appeal
Tribunal has made an order under subsection 22
(6) of the Farm Registration and Farm
Organizations Funding Act, 1993 that payment or
filing be waived.
These fencing duties are binding on municipalities, the Ontario Crown, Crown agencies, natural persons and their heirs and executors - and on any subsequent purchasers as well. In particular, while municipalities may generally opt out of the Line Fences Act regime, they may not opt out of this provision [Municipal Act, s.98; City of Toronto Act, s.108].
Where they apply, these duties override the normal LFA cost-sharing rules to render the new non-abutting owner fully responsible for the fencing expenses. More specifically, in the case of Ontario this rule would appear to override the rule that fence-viewers may not order Ontario to be responsible for more than one-half of a line fence (above). Further, with respect to Crown Agencies and municipalities it would appear to override the normal LFA cost-sharing rules entirely.
(c) Comment re Former Railway Rights-of-Way Rules
The above rule is a 2006 amendment to the law respecting purchased railway rights-of-way. They were the result of political compromises between farmers and advocates for preservation of such lands for public use: primarily hiking, bicycle, hiking and snowmobiling trail groups. See now the Ontario Trails Act.
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