Line Fences (Ontario) Legal Guide
(01 April 2020)
Chapter 2 - Arbitration of the Erection,
Repair and Removal of Line Fences
- Arbitration Procedure
(b) Scheduling of Fence-Views and Weather
(c) Fence-View Procedure
- Criteria for and Content of Fence-Viewer Awards
- Removal of Line Fences
- Trees Falling on Line Fences
As mentioned before, landowners have a general right to have a line fence between their and adjoining properties. Where the local municipality has NOT opted out of the Lines Fences Act (see Chapter 1: "Overview"), the procedures for erecting, repairing and removing these fences are explained in this chapter [LFA s.4, s.21].
The LFA regime allows a landowner 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 (see chapter 5 where there is such an agreement.) The same procedure applies for the removal of fences (s.12).
The arbitration process is commenced by the landowner filing the proper forms with the local municipal clerk requesting an arbitration by "fence-viewers". 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 fence-viewer procedure also applies to situations where a tree from either property falls on the line fence, in which case the issue is the allocation of responsibility for removal of the tree and repair of the fence. The fence-viewers appear to have no jurisdiction over any other damages or claims relating to fallen trees and these would have to be dealt with under the general law of trespass and negligence, which is beyond the scope of this Legal Guide.
2. Arbitration Procedure
As mentioned, the arbitration process is commenced where one landowner files the proper forms with the clerk of the local municipality.
Form 1: Request for Fence-Viewers
(b) Scheduling of Fence-Views and Weather
Then the clerk shall send signed notices to the applicant, the owner OR occupant of the adjoining land, and to the fence-viewers - setting out a time, date and location when and where three "fence-viewers" will attend to view the fence (or property line, as the case may be). [s.4(2)]
Form 2: Clerk's Notice to Parties
Form 3: Clerk's Notice to Fence-Viewers
Where the occupant is not the owner (for instance, a tenant), "the occupant shall immediately inform the owner of the notice, and an occupant who neglects to do so is liable for all damage caused to the owner by such neglect" [s.6].
Where the land involved is registered as a condominium, the condominium corporation is the party to the LFA proceedings, not the individual condo owners [s.1(4)].
Subject to weather and winter (discussed below), the date of the view must be at least one week after the notices are served, but no more than 30 days after the application was first made. Notice shall be served by registered mail, although to notice to owners and occupants may also be "given by leaving it with the owner or occupant at the place of residence of the owner or occupant or with some other person, over the age of eighteen years, residing thereat."
The municipal clerk may postpone any attendence by fence-viewers, other than an appeal before a referee (see Appeals), "if in the clerk's opinion weather conditions or ground conditions make it impracticable for the arbitration to be held on the day originally named for the attendance" (s.5(1).
If this is done the clerk shall advise the parties (those originally notified) of the postponement and give new notice of a re-scheduled view to be held within fifteen days of the postponed view.
Municipal by-laws may also restrict the "attendance or reattendance of fence-viewers" (except appeals before a referee, see Appeals) during any specified period in winter between 01 November and 31 March (s.5(2) - ie. the by-law could specify a smaller period. Such barred proceedings will be scheduled once the period has expired.
(c) Fence-View Procedure
A "fence-view" is the heart of a line fence arbitration:
s.7A fence-view is generally an informal and practical meeting between the viewers and each owner, usually separately. However it is also a legal proceeding governed by a general Ontario administrative statute called the Statutory Powers Procedures Act (SPPA). The SPPA sets out rules of conduct and procedural fairness for a wide variety of exercises of statutory authority, including fence-viewer arbitrations. A parallel Isthatlegal.ca Administrative Law (Ontario)(SPPA) Legal Guide is linked here for reference.
The fence-viewers shall examine the premises and, if required by either adjoining owner, shall hear evidence and may examine the owners and their witnesses on oath.
Natural justice principles are not limited to those found in the SPPA, and may be imported into proceedings by the courts. In the case of Piper v Harmer (Ont Div Ct, 1979) the court held that when fence-viewers obtained and considered evidence away from the parties, not giving them a chance to make submissions or call counter-evidence on such evidence, a denial of natural justice resulted which justified the quashing of the fence-viewer's award. It is worth noting that this judicial review was granted even though the applicant had not used the statutory referee appeal procedure, which had a very short filing deadline.
All municipalities are required by law to appoint enough "fence-viewers" as are required in their area. They are paid by the municipality by the hour, the day or by each attendence (s.2). After any appeals are settled or the time for appeal is expired, the municipality will pay the fence-viewers their fees, subject to collection by the muncipality against the parties ordered to be responsible for them (see Enforcement).
In most cases all three fence-viewers are appointed by the local municipality.
Where there are two municipalities involved then one comes from the municipality of the applicant, and two from the municipality of the adjoining landowner. In the unusual case where the situation involves land in a municipality and land in "territory without municipal organization" (usually in Northern Ontario), then all three fence-viewers come from the municipality, but at least one of them must live "outside the municipality in the vicinity of the land of the other owner or occupant" (s.1(3).
3. Criteria for and Content of Fence-Viewer Awards
The factors which a fence-viewer shall consider in making an "award" are [s.8)(2)]:
As well, where there is a by-law in place regarding the height and description of fences, or otherwise regulating the construction of fences, the award shall comply with such by-law. Note that such by-laws may be passed by a municipality even though they have NOT opted-out of the LFA [s.8(3)].
- the suitableness of the fence to the needs of each of the adjoining owners or the occupants of their land,
- the nature of the terrain on which the fence is, or is to be, located,
- the benefit to both owners of having the boundary between their lands marked by a fence,
- the nature of the fences in use in the locality,
- any other factors that they consider relevant.
Awards shall be written, signed by any two of the fence-viewers, and shall specify:
Form 4: Award
- where no fence exists, "that a fence shall be constructed and maintained and kept up to mark the boundary between the adjoining lands" OR where a fence exists, "that the fence shall be reconstructed or repaired, and shall be maintained and kept up";
- the location of the fence (it may encroach onto the neighbour's property in some circumstances, (see the chapter: "Trespass");
- that each adjoining owner shall construct, reconstruct or repair, as the case may be, and maintain and keep up a designated one-half of the fence, OR that one owner shall do the work and the other shall, on notice, pay half of the "cost of the work" to the one who does the work - UNLESS the fence-viewers consider such an award to be unjust, in which case they may make an award in "they consider appropriate".
It is important to note that "cost of the work" includes the "value of the labour performed to complete the work" [s.1(1)]. [Comment: This provision is unfortunate as, in the event of all too frequent "grudge matches" between neighbours, it provides a clear oppourtunity for further exacerbation when the neighbour who performs the work presents the other with a bill which includes amounts for the neighbour's labour. The potential for conflict is clear and the situation begs for some independent authority to resolve the matter with finality.]
- the description of the fence, including the materials to be used in the construction, reconstruction, repair or maintenance and keeping up of the fence.
- the date by which the construction, reconstruction or repairs shall be commenced and the date by which such work shall be completed; and
- the costs of the proceedings and by which of the owners or in what proportion the costs of the proceedings are to be paid [s.8(1)]. In assessing costs against parties in arbitrations, fence-viewers may include their own fees, municipal fees as set by by-law, and land surveyor fees [Reg 363/13, s.5].
The rates of fence-viewer fees are established by by-law in each municipality [s.2].
Subject to maximums established by the province, municipalities may by by-law establish "reasonable administrative fees to be paid to the municipality in relation to proceedings under this Act".[s.17(1)(2)]
Surveyors and witnesses involved in LFA proceedings are entitled to the same fees or attendence as are witnesses in the small claims court. This fee is (really) $6.00 per day, plus actual travel costs to a maximum of 30 cents/km in southern Ontario and 30.5 cents/km in northern Ontario [s.18(1)].
Where after any attendence the fence-viewers do not issue any order on the substantive issues (either award, certificate or determination) they may still make a cost award regarding the cost of the proceeding [s.14(1)]. This costs order shall be filed with the involved municipal clerks in the same fashion as awards are [s.14(2).
5. Removal of Line Fences
The LFA arbitration provisions apply to situations of line fence removal as well [s.21(2)].
That said, the LFA provisions regarding removal of line fences are awkwardly worded, and introduce the previously-unused concept of ownership of the fence itself - which to date has not been addressed within the LFA (ie. who "owns" the fence built by one owner and paid in part by another? Is it joint ownership over the entire fence or sole ownership over different parts?). I have never seen a case where this issue was litigated.
Note 1:I suggest the following as a reasonable interpretation, consistent with the purpose of the legislation, of the LFA's s.21(2) line fence removal provisions [please be clear that this text is my drafting, and that it is only modelled on the actual wording of LFA 21(2)]:
Interestingly, the ownership issue is addressed where the boundary line is marked by trees. In that case, "(e)very tree whose trunk is growing on the boundary between adjoining lands is the common property of the owners of the adjoining lands." [Forestry Act, s.10(2)]. Additionally, it is an offence under that Act to injure or destroy such trees without the consent of the land (and thus tree) owners [Forestry Act, s.10(3)].
Neither owner (the legislation says "the owner of the whole or part of a line fence") may remove any part of a line fence unless:Lastly, this Criminal Code provision may also play a role in such adversarial situations:
(a) where there has been no prior fence-viewer award on the issue, giving "at least six months previous notice of the owner's intention to the owner or occupant of the adjacent land",
(b) where there has been a fence-viewer award on the issue, after demand made upon the other neighbour in writing (the legislation says "by the owner of the fence"), and the other neighbour refuses to pay therefor the sum" according to the award.
Further, neither neighbour shall remove any part of a line fence where the other neighbour "will pay" (legislation wording) to the owner of the fence or part thereof such sum as the fence-viewers may award". "Will pay" is awkward language and has no useful function when trying to finalize disputes. Judges may give it a stronger meaning.
442. Every one who wilfully pulls down, defaces, alters or removes anything planted or set up as the boundary line or part of the boundary line of land is guilty of an offence punishable on summary conviction.On it's face this provision is absurd as it prevents two consenting and abutting landowners from taking an old fence down, which is why it is subject to the 'colour of right' defence, which is considered (incongruously) in my Animal Cruelty Legal Guide:
Ch.4: Colour of Right Defence
6. Trees Falling on Line Fences
When a tree falls onto a line fence, s. 22 of the LFA places a duty on a owner or occupant of the land where the tree is located to remove the tree and repair the line fence [s.22(1)].
If, after 24 hours written notice to comply with the duty under s.22(1), nothing is done, the neighbouring owner may:
.... may remove it in the most convenient and inexpensive manner, and may make good the fence so damaged, and may retain the tree to remunerate the adjoining land-owner for such removal.[s.22(2)]In removing the tree, "the owner of the tree may enter into and upon the adjoining land doing no unnecessary spoil or waste" [s.22(4)]. Any unnecessary or malicious harm done in such an entry would invite civil counter-trespass claims and perhaps even prosecution for trespass.
The costs of fence repair by the neighbouring land owner may be recovered through LFA procedures [s.22(3)]. Disputes over such fallen trees may be resolved by fence-viewer arbitration [s.22(5)].
Note that the situation where trees are growing along a boundary line, effectively acting as a sort of line fence (though not as a line fence within the meaning of the LFA), is addressed briefly in Ch.1, s.2(e): "The Forestry Act and Boundary Trees".