Line Fences (Ontario)
Chapter 4 - Lands Without Municipal Organization
- Default in Obeying Awards (Certificates)
- Registration of Awards, Certificates and Line Fence Agreements on Title
Where lands are located in territories without municipal organization (mostly in Northern Ontario), simpler line fences procedures are established, although the main legal principles contained in the LFA continue to apply.
This simpler regime replaces the role of the municipal clerk with the office of the Minister of Municipal Affairs, and has processes for line fence arbitrations awards, default proceeding certificates, line fence agreements and appeals to referees.
The provisions in the Regulation [Reg 716/90] are clear and self-contained, so I quote them here without editing.
s.2Form 1: Award
Where an owner of land desires to construct, repair or maintain a fence to mark the boundary between the owner's land and adjoining land but the owner and the owner of the adjoining land cannot agree on how the costs of constructing, maintaining or repairing the fence should be apportioned, either owner may notify the Minister that the owner wishes fence-viewers to view and arbitrate the dispute.
The Minister shall appoint three fence-viewers who shall attend at the land at a date and time specified by the Minister to arbitrate the dispute.
When the fence-viewers have completed their view and have heard the owners, the fence-viewers shall make an award in Form 1 signed by any two of them, in respect of the matter in dispute and the award shall set out,
(a) the apportionment of the costs of constructing, maintaining or repairing the fence, as the case may be; and
(b) the description of the fence, including a description of the materials to be used in the construction, repair or maintenance of the fence and of the location of the fence.
The fence-viewers shall apportion the cost of any part of the fence that marks the boundary between the lands of the owner and an adjoining owner equally between the two owners, unless, having regard to,
(a) the suitability of the fence to the needs of each of the owners or occupants of the land;
(b) the nature of the terrain on which the fence is, or is to be located;
(c) the nature of the fences in use in the locality; and
(d) such other factors as the fence-viewers consider relevant to the decision,
the fence-viewers consider an equal division of the costs would be unjust, in which case the fence-viewers shall make such apportionment of costs as they consider appropriate in the circumstances.
Despite subsection (2), an apportionment of costs made in respect of lands vested in the Crown in right of Ontario shall not require the Crown to pay an amount exceeding 50 per cent of the cost of the fence.
The fence-viewers shall forthwith deposit the award with the Minister and the award may be proved by a copy certified by the Minister and the Minister shall send a certified copy of the award to each owner and occupant of the adjoining lands at their last known place of residence.
s.6(1)Form 2: Notice of Appeal
An owner may appeal an award to the referee appointed under subsection 27 (2) of the Act by serving on the owner or occupant of the adjoining land, within fifteen days after receiving a copy of the award, a notice of appeal in Form 2 and by filing a copy of the notice, an affidavit of service of the notice and an administrative fee of $50 with the Ministry of Municipal Affairs within the fifteen-day period.
Note: The fee for appeals filed in 2014 is $300, and after that it increases with inflation [Reg 716/90, s.6(4-7)]. The fee for 2015 is $308.s.6(2)
The referee shall hear and determine the appeal and may,
(a) set aside, alter or affirm the award, or correct any errors in the award;
(b) examine the parties and their witnesses on oath;
(c) inspect the premises; and
(d) order payment of costs of the proceedings by either party and fix the amount of costs.
The decision of the referee is final and the award, as altered or affirmed, shall be dealt with in all respects as it would have been if it had not been appealed from.
4. Default in Obeying Awards (Certificates)
s.7(1)Form 3: Certificate of Default
Where an owner has incurred costs in constructing, maintaining or repairing a fence and the owner claims an amount is owing from the owner of adjoining land under the provisions of an award, the owner may notify the adjoining owner or the occupant of the adjoining land of the amount of the claim under the award.
Where the adjoining owner does not pay the amount claimed within twenty-eight days following the day on which notice is given, the owner may notify the Minister that the owner wishes the fence-viewers to re-attend to view the fence and assess the claim and the fence-viewers shall re-attend at the lands at a date and time specified by the Minister.
Where one or more of the fence-viewers who made the award is unable to re-attend at the lands, the Minister may appoint another fence-viewer to appear in his or her place.
When the fence-viewers have completed their view and have heard the owners, the fence-viewers shall determine the value of the work done by the owner, shall make an assessment of the owner's claim and shall prepare a certificate in Form 3 certifying the amount payable by the adjoining owner as a share of the costs of the work.
The fence-viewers shall deposit the certificate with the Minister and the Minister shall send a copy of the award, certified by the Minister, to the owner and the owner and occupants, if any, of the adjoining land at their last known place of residence.
The owner may file a certified copy of the certificate and of the award with the clerk of the Small Claims Court and, upon being so filed, the amount may be levied against the goods and chattels and the land of the adjoining owner in the same manner as the amount of a judgment of the Small Claims Court is levied under the Courts of Justice Act.
5. Registration of Awards, Certificates and Line Fence Agreements on Title
8(1)Form 4: Agreement
The award and a certificate, if any, may be registered in the proper land registry office and, where registered, are charges upon the land affected by them.
Registration may be made by registering a duplicate or a copy of the award or certificate, certified as such by the Minister.
An agreement in Form 4 between owners apportioning the costs of constructing, maintaining or repairing a line fence may be registered in the land registry office and enforced as if the agreement were an award of the fence-viewers.