The House resumed at 8 p.m.

House in committee of the whole.

LINE FENCES ACT

Consideration of Bill 17, An Act to revise the Line Fences Act.

Mr. Rotenberg: Mr. Chairman, you will recall that when we gave second reading to this bill, I did not make any concluding comments as the parliamentary assistant because we reached 10:30. It was indicated then that I might make some brief comments at the start of the committee stage in order to reply to some of the questions that were raised by the members rather than delay second reading two weeks ago tonight.

With your permission, Mr. Chairman, if I may, I would take a few moments to comment on some of the points that were raised by members opposite. I would indicate that I would reserve discussion on the particular sections, where I know amendments will be made, until such time as we reach those sections. I would like to thank all the members opposite who indicated support for the bill and gave unanimous consent to second reading.

I would like to comment briefly on some of these points that were raised. First, the member for Welland-Thorold raised a number of points. He complained of the fact that it took the government so long to bring this matter forward and to have the matter come for second reading. He noted that we had three versions of the bill before we got to the final one.

Quite frankly, this surprised me a little bit because it is that party probably more than others which is always saying there should be full and complete public discussions. The whole point is that we put out a bill and sent it for public discussion to all organizations and all interested parties -- in particular, the Rural Ontario Municipal Association, the Ontario Federation of Agriculture and the municipalities of the province.

Mr. Lawlor: I knew you would start off graciously, but end up acrimonious. Why don’t you start the way you feel?

Mr. Rotenberg: And we did that. I would like to point out to the honourable member for Welland-Thorold (Mr. Swart) that the process was simply one of trying to resolve all the problems that came from various organizations and municipalities without moving in haste, because too often if you move in haste and take the first version of the bill, you regret at leisure. On this side, we would rather progress conservatively. I think we have taken into account all the requests of the various organizations and municipalities. We have not solved all the problems or acceded to all the requests of the various parties concerned, but I think the bill now before you satisfies the major concerns of all the parties.

I recently met with people from ROMA and from the OFA, and while they still have some lingering doubts about a couple of minor things, they have indicated to me that they are reasonably satisfied with the bill as presented. I don’t think anyone expects 100 per cent of the requests to go forward; they simply want the principle, the main points they have, to be included in the bill.

The member for Welland-Thorold did raise a problem which I would like to deal with very briefly, an apparent contradiction between section 7 and section 14. Section 7 of the bill in effect says the fence-viewers shall make an award. Section 14 of the bill indicates where no award is made, such and such will happen. I would like to explain to the honourable members that this is not meant to be a contraction and is not really a contradiction because we do go along with the principle in the bill that the fence-viewers must make an award where possible. Section 14 provides for those areas where the fence-viewers cannot make an award. Possibly it is beyond their jurisdiction; there is no survey and they can’t make an award. Or possibly the matter has been settled by the time they get there, or settled harmoniously when they get there. There may be some reason why the fence-viewer cannot make an award and section 14 provides that they collect their fees anyway. The point the member for Welland-Thorold made that section 14 could be misinterpreted was well taken, and for that reason we will be proposing an amendment when we come to section 14. I apologize to the opposition members that I have not given them that amendment until this evening, but I did give both of them notice that that amendment would be coming.

I also want to reply briefly to the question raised by the member for Wellington South (Mr. Warton). I think the question he posed really had to do with whether or not the fence-viewers have the jurisdiction to decide on the type of fence and its construction if there is a dispute between the two owners. I would like to point out to the honourable members that section 7(c) of the bill does give the fence-viewers the right to decide on the type and construction of the fence, as well as allocating the cost.

The member for Wellington South asked whether, if fence-viewers find that the fence is in the wrong place, they can give a decision leaving the fence in the wrong place. Can they decide that the fence should be here rather than there, or not on the boundary line? The answer to that is no. This act does not give them those powers. There would have to be other means of settling that dispute. The fence-viewers don’t have the power and we don’t want to give them the power of settling boundary disputes, which we think is beyond their jurisdiction.

All of the other matters of substance raised dealt with individual clauses in the bill. With your permission, Mr. Chairman, I would like to move to section 7, if there are no comments before section 7, and place an amendment.

Sections 1 to 6, inclusive, agreed to.

On section 7:

Mr. Rotenberg: Section 7(b) provides three different items on how the fence-viewer can make the award. Subclauses (i) and (ii) in effect say the fence-viewer can make an award equally or unequally, and subclause (iii), over on page four of the bill, indicates the fence-viewer may award that one adjoining owner shall construct and pay for the entire fence.

This is a matter the Ontario Federation of Agriculture specifically felt should not be in the bill. Although the preferred position of some of them was still 50-50, they could live with subclauses (i) and (ii) provided subclause (iii) was not in the bill.

We have considered this matter and think they do have a valid point; subclause (iii) could be removed without harming the principle of the bill. For this reason I would move a following amendment.

Mr. Chairman: Mr. Rotenberg moves that section 7(1) (b) of the ‘bill be amended by striking out “or” at the end of subclause (ii) and by striking out all of subclause (iii).

Mr. Rotenberg: Mr. Chairman, might I make a suggestion? I note the member for Welland-Thorold has a different amendment on this clause. I am wondering if we could vote on my amendment first, which hopefully would carry, and then he could move ‘an amendment to the clause as amended. I think mine is non-controversial and his certainly will be controversial.

Mr. Swart: I agree with that procedure. I am not sure whether the member for Waterloo North (Mr. Epp) wanted to speak to it first. I do want to speak to the amendment but I agree with the procedure.

Mr. Epp: I have no objections to the procedure, Mr. Chairman.

Mr. Swart: Mr. Chairman, I will vote in favour of the amendment because I believe it improves what is in section 7 of the bill at the present time. However, I don’t think it goes far enough in meeting the requests of the Ontario Federation of Agriculture or the Rural Ontario Municipal Association in assuring the principle of a 50-50 split in the cost of constructing a line fence. Therefore, I will be moving an amendment afterwards, which the parliamentary assistant has, to make further changes in that whole subsection (b). But we can deal with this first and deal with my amendment afterwards.

Mr. Epp: Mr. Chairman, we have no objection to the amendment. We think what the member for Wilson Heights has recommended makes sense and we will support it.

Motion agreed to.

Mr. Chairman: Mr. Swart moves that section 7(1)(b)(i) and (ii) be deleted and the following substituted therefor: “(b)(i) that each adjoining owner shall construct, reconstruct or repair, as the case may be, and maintain and keep up a designated one half of a fence; or

“(ii) that the adjoining owner designated shall construct, reconstruct or repair, as the case may be, and maintain and keep up the fence, and that the other adjoining owner shall, upon being notified by a designated adjoining owner of the costs of the work incurred from time to time, pay to the designated adjoining owner one half of the costs incurred, unless the fence-viewers in the circumstances of the case considered an award in the term of subclauses (i) or (ii) to be unjust, in which case the fence-viewers may make such award in respect of the construction, reconstruction, repair or maintenance of the fence as they consider appropriate.”

Mr. Swart: Mr. Chairman, as I have already pointed out, the amendment put by the member for Wilson Heights does make an improvement and at least goes part way to meet the requests of the Ontario Federation of Agriculture. There is a very strong feeling among the Ontario Federation of Agriculture and among the Rural Ontario Municipal Association that the principle of the 50-50 split should be firmly established. In Bill 17 which we have before us, that is not established to their satisfaction.

[8:15]

The Rural Ontario Municipal Association, after the amendments from this party had been submitted to them by the member for Wilson Heights, went over them in some detail; and they have confirmed they would like to see an amendment which I have put become the operative section of the act.

Again, I am the first one to admit that the difference may not be great; but there is a real difference in the wording. The existing section says, “the award shall specify 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 such other designated portion of the fence that the fence-viewers consider just.” If it is left at that, I think you would agree that if that was taken to court it would be pretty wide open. There is really no basic principle established there. It says, “one half ... or such other designated portion,” all in the same clause.

The amendment which I am submitting takes that out of those clauses that firmly establish that principle, and then, pursuant to those clauses which establish that principle, there is a qualifying section. That may seem like splitting hairs; but the lawyers tell me that if that goes to court there is some difference between those two, and it more firmly establishes the 50-50 principle. I think the reason that the member for Wilson Heights has moved that subclause (iii) be taken out is to establish that principle more firmly. This does it even a bit further; therefore, I suggest that it is preferable and that my amendment should carry.

Mr. Rotenberg: The member may be correct that it is splitting hairs but not totally correct. There is some difference and, as he indicated, it may be a subtle difference, but it could be indicated in the courts that the wording he suggests makes the 50-50 law mandatory, unless there is a very great exception. Really, what I think would happen if we carried his amendment would be that the fence-viewers would feel they are bound by the 50-50, unless they can really establish that something else should happen. In practice, it may or may not work out that way, but the accent is that the 50-50 is what should happen.

The way the legislation has been presented in the bill, the fence-viewers are much freer to assess responsibility for the need for the fence, and responsibility on the type of fence and so on, and would have a little wider discretion.

The member is quite correct in that the Ontario Federation of Agriculture has said it prefers the wording he brought forward, but it has also indicated that as long as subclause (iii) is out -- and it is now out -- the OFA can quite happily live with the wording the government has presented in the bill.

I think there are a couple of points that should be raised in discussing this amendment. During second reading, the member for Huron-Middlesex (Mr. Riddell) raised the first point and indicated that he would not support this type of amendment because, although the livestock farmers would be delighted, the cash crop farmers would not like the amendment. There could be a situation of one type of farmer next to another type of farmer, and while I am certainly not an expert in agriculture I can understand the fence would be required because the livestock would enter the cash crop farmer’s land.

Mr. Makarchuk: You should be wearing overalls.

Mr. Rotenberg: If the cash crop farm has no fence -- and I am sorry the member for Huron-Middlesex is not here this evening; he could put it much better than I -- and a sort of Sunday horse farmer comes in and puts a bunch of horses on an adjoining farm, suddenly the cash crop farmer who has been happy all these years, requires a fence. In those circumstances, maybe the man who has changed the circumstances should have to pay more than half the cost of the fence. The man who was happy without a fence, because he was not responsible for the change in the circumstances, should perhaps pay less.

The other point, which I think follows the matter raised by the member for Wellington South, is if there is a dispute on the type of fence; if one owner, be it urban or rural, wants a very fancy fence and the other owner is content with quite a simple fence. Then the fence-viewer might say, “All right, we will have a fancy fence; but the man who wants a fancy fence will have to pay more than half the cost because he, in effect, is requiring the cost.”

Another thing I should point out is that although historically the Line Fences Act has been deemed to be a rural act, the Line Fences Act also applies in urban municipalities and has for many years. In an urban situation, far more than in a rural situation, I can see where the mandatory 50-50 or the semi- mandatory 50-50 division should not apply.

Let us take a case where there is a vacant lot on the main street and behind it on the side street there are three or four houses. There’s no fence and they are very happy. But the line on the main street may be zoned commercial and suddenly the commercial owner puts up a row of stores, or a drive-in theatre, or a cleaning plant, or an abattoir -- God knows what -- and suddenly there is a need for a fence in order to protect the private property owners who were quite happy before. Certainly it would seem the commercial owner should pay for more than half of that fence.

In the wording as proposed by the member for Welland-Thorold, sure, maybe the fence-viewers would award more, but there is a certain restriction implied in his wording which would make the fence-viewers hesitant in those cases to put forward anything more than a 50-50 division.

I am agreeing somewhat with the member for Welland-Thorold in that maybe there isn’t that much difference between the two wordings. If that is the case then obviously they should accept the wording that is in the bill. There’s not that much difference, but I feel there is enough of a difference that in all of the kinds of situations that are put forward would inhibit the fence-viewer from making a 60-40 or 70-30 division, or whatever, in the wording proposed by the member for Welland-Thorold.

For these reasons I would not support the amendment and would urge my colleagues in the House also not to support the amendment.

Mr. Epp: Mr. Chairman, I have looked over this amendment and I think it does clarify what the member for Welland-Thorold has indicated it clarifies, and without much ado we will support this amendment.

Mr. Chairman: All those in favour of Mr. Swart’s amendment will say “aye.”

All those opposed will say “nay.”

In my opinion the ayes have it.

Motion agreed to.

Section 7, as amended, agreed to.

Mr. Haggerty: Section 4?

Mr. Chairman: I’m sorry, section 4 has been carried.

Mr. Haggerty: Section 7(4), “Location of fence.”

Mr. Chairman: The section has been carried, but if you have a question, go ahead.

Mr. Haggerty: I thought you were dealing with section 7(1)(b).

Mr. Chairman: I asked if section 7, as amended, should stand as part of the bill. I don’t want to cut any honourable member off; I’m sure you can ask a question.

Mr. Haggerty: I just want an explanation from the parliamentary assistant of subsection 4, where it says, “Location of fence. Where, from the formation of the ground by reason of streams or other causes, it is, in the opinion of the fence-viewers, impracticable to locate the fence upon the line between the lands of the adjoining owners, they may locate it either wholly or partly on the land of either the adjoining owners where it seems to be most convenient, but such location shall not in any way affect the title to the land.”

This particular section of the fence-viewers act has often caused municipal councillors problems -- even the private owners. I am just not sure that that is the right wording. It doesn’t solve the problem.

You may not have title to land but you have possession of it. You could perhaps have a fence moved 100 feet on the other side of a stream, or something like that, which would certainly deprive a farmer on the other side of the fence of his rights to water.

It has always caused problems within municipalities that any person where a fence has been established for a period of seven to 10 years doesn’t have title to the land but has possession of it. When you are dealing with farm lands it may remove a person’s right of access to water. If he has a cattle pasture in a marsh area or swamp area it could cause problems.

It just isn’t worded right. There has to be some protection there. It could happen that an improper decision by the fence-viewer could deprive a person of his rights to a stream of water on his farm.

Mr. Rotenberg: Mr. Chairman. I see the honourable member’s concern. But I think the way the clause is worded it really would be for minor deviations. Up to a point, you have to trust the discretion of the fence-viewers that in moving a fence they wouldn’t deprive someone of his water rights for a major portion of the land. Sometimes there’s a little hill or something in there that means the fence has to deviate.

The purpose of the section is to allow -- to use a term from the committee of adjustments -- minor variances in the fence. I certainly don’t think this should be used to move a fence 100 feet one way or the other. That gets far beyond the sense of what is meant in this section.

I would say to the honourable member that until he raised it now, no one has ever raised this matter during all the discussions on this bill. To the best of my knowledge, there’s never been a problem in the past with this section as far as the implementation is concerned.

Simply going on the bill’s 179-year history in various forms, this hasn’t caused a problem. I think we can assure the honourable member that the intentions here are to have very minor variances and it hasn’t caused a problem up until now. I see the member’s concern but I don’t think it’s something to worry about.

Sections 8 to 11, inclusive, agreed to.

On section 12:

Mr. Chairman: Mr. Swart moves that sections 12(5) and (6) of the bill be deleted and the following substituted therefor: “Where the clerk of the local municipality, in which the land of the adjoining owner is situate receives a certificate prepared under subsection 1, and the award in respect of which the certificate was made or copies thereof certified by the clerk in accordance with this act, the treasurer of the municipality upon application in writing by the owner entitled to receive the amount certified, shall pay to the owner the amount so certified.”

He further moves that section 12(9) be amended by striking out the words, “or instead of applying for that amount or a portion thereof under a bylaw passed pursuant to subsection 6” in the second, third and fourth lines.

Mr. Swart: Mr. Chairman, it’s perfectly clear to all members of the House what we’re intending to do with regard to this amendment. Under the bill as it now stands, the recourse for an owner to collect from the other owner one half of the cost of the fence or whatever portion shall be awarded by the fence-viewers is to take it to court and get an award there, or the municipalities may pass a bylaw so that the amount can be levied against the taxes of the other owner and that money will be paid over to the first owner at the time it is collected. That could be two, three, four, or even five years.

[8:30]

This amendment provides that if the one owner requests, a municipality shall assess that against the taxes and pay it immediately over to the first owner.

Under this act, it’s left up to the municipality whether or not they pass a bylaw to pay that over immediately first of all, this will mean that there can and probably will be wide variations throughout the province between one rural municipality and the neighbouring municipality. One municipality will pass the bylaw and another municipality won’t pass the bylaw. There will be confusion among the farm population, the landowners, as to how they are going to collect this money. It seems to me there is merit in having it uniform.

Under the former act, their only recourse to get this was through the courts. They had to look after the collection themselves. In fact, under the act which we are now replacing, a great deal more of the responsibility was put on the landowner. He even had to notify the other owner that he was calling in the fence-viewers. It was a sort of confrontation between the one landowner and the other landowner.

This bill moves most of that responsibility of notification and all other matters to the municipal clerk, as I think it should be, and there is no disagreement in this House about it because the government has brought in that notification amendment at the very strong request of the Ontario Federation of Agriculture. But this one section still leaves the whole thing very vague and very weak. I think we should tidy it up and amend it so that it is uniform across the province. Once they’ve gone through appeal procedures, if appeal procedures are taken, then if the one owner wants to collect that money, he still has the right to go to court to do it.

He also would have the right to go to the municipality. If he goes to the municipality, which is much the cheapest way -- and the municipality has security in the taxation process -- he would have that money paid to him, and not just on the whim of whether council decides to pass a bylaw. We all know what happens in these cases. Somebody gets caught like this and the municipality rushes a bylaw through. However, the neighbouring municipality doesn’t have this problem and it doesn’t have a bylaw. Then, when one of its constituents gets into a problem, that municipality doesn’t have the bylaw there to resolve the problem.

It should be done for uniformity and, more than that, to be fair to the owner who has invested money in the fence. When it’s all done at the initiative of the municipality and where the fence-viewers are appointed by the municipality, make the award, and where it has gone through the court and where the judge, under section 10 of this ad, is paid by the municipality, he doesn’t have to collect from the person who brings it to court, he gets paid by the municipality. That’s already in the act. But the farmer may either have to take the other person to court and perhaps never collect it that way -- we know the difficulties there, even if he does get a ruling in his favour -- or if it is applied against taxes, he may have to wait until the money is actually collected which could be two, three, four or five years.

I admit to the parliamentary assistant that the Rural Ontario Municipal Association on a split vote, didn’t back this but the Ontario Federation of Agriculture did. The OFA would like to see this amendment included in this act and, for all those reasons I mentioned I think it should be.

Mr. Rotenberg: Mr. Chairman, I disagree slightly with my honourable friend across the way when he says this is all on the initiative of the municipality. It is not. It is on the initiative of the individual property owner, or two of them, who want to put up a fence. The municipality simply acts as the arbitrator in the dispute. The judge is paid because the judge is a public official.

I find it a little strange hearing tonight that the member for Welland-Thorold wants to make it mandatory in municipalities to have to pay out this money. He was in this chamber about 48 hours ago, when we were dealing with another part of the Municipal Act, when his colleagues from the Hamilton-Wentworth area were so uptight about local autonomy and so uptight about the fact that local municipalities should be able to make their own decisions that those people voted against third reading of the change in the Municipal Act dealing with assessments.

This is a matter of local autonomy. Let’s face it, municipalities are not collection agencies. Municipalities should not be collection agencies. What you have is a private dispute between two private parties. The purpose of this whole Line Fences Act is to have a simple mechanism for settling a dispute between two parties so they don’t have to go through the long hassle of going to court. The reason for that is mainly in rural Ontario where, in the springtime if a fence is down and you want to fix it when the cattle are ready to go out you can’t wait for the whole court procedure. You should have a fast procedure for settling the dispute.

Because it is a little local matter, the government 186 years ago decided the municipalities should be charged with being the arbitrators. That’s fine, but it doesn’t mean that once the matter is settled the arbitrators have to put up the front money until the person against whom the judgement was made can pay. By the same logic, when you go to the county court or the Supreme Court, you can say the court should advance the money to the party who gets judgement until the other fellow pays his money. It is just so against all matters of justice to say the court, in this case the municipality, has to advance the money to the winning party in a dispute. I don’t think it proper.

We have made it an option on municipalities where there is a small amount and the municipality wishes to do it; we give them the power to do it if they want to. But I repeat, to make it mandatory that the municipality must lay out the money is contrary to local autonomy and contrary to good legislation.

It isn’t that bad because, unlike other cases, it is provided in this legislation that if the party doesn’t get paid he can go to small claims court -- which is a much faster process -- and get in in effect a judgement summons and be able to very quickly send in the sheriff to collect his money, if he wants to go that route.

The other point we have to realize is there may be some situations, in a rural municipality which is large in area but very small in assessment, in taxation and so on, where you might get an award between two very large-sized farms, an award in the thousands of dollars, as the amount awarded from one farmer to another in building a fence. The winning party in that case may go to the municipality and say, “Hey, fellows, I want my money.” That could be a major piece of the township’s budget. It could in fact blow their budget or their monthly payment if you got a couple of major awards in a small rural township.

Mr. Swart: That’s a straw man.

Mr. Rotenberg: Frankly, I do not feel you should make it mandatory upon a municipality to be the collection agency. In fact, quite frankly I have some reservations about having the municipality in the collection agency business at all. But if a municipality wants to do it to facilitate their citizens with small amounts and put it on the tax bill of the owner against whom the judgement is made that is fine, let them do it.

For these reasons, Mr. Chairman, I would not support the amendment.

Mr. Epp: I appreciate the indulgence you are exercising tonight, Mr. Chairman, letting everyone speak in their turn. We are proceeding very quickly with these amendments during committee of the whole House.

As far as I am concerned the member for Welland-Thorold is somewhat inconsistent with his colleague from Wentworth as I noted here before the member for Wilson Heights mentioned it. When we were speaking about Bill 115 on Tuesday night the member for Wentworth (Mr. Isaacs) indicated very strongly we should have more local autonomy and, secondly, he indicated very strongly when I brought in my amendment to permit equalization of assessment under section 86 of the Assessment Act -- and we were dealing in that instance with section 505 of the Municipal Act -- he indicated very strongly that municipalities should be able to do what they wanted and, obviously, we were the wolves at that time in not being consistent in supporting him.

We will be consistent tonight, Mr. Chairman. We will support the amendment because I think it does bring more consistency across the province and that is what we want. In addition, in our conversations with the Ontario Federation of Agriculture they indicated very strongly they would like to see something of this nature. I also feel it reduces the use of the court.

We often hear about the excess number of cases that go to court. The Attorney General (Mr. McMurtry) says he needs more staff for the courts. We say we need more court buildings and everything else and yet we continually try to create situations where the courts have to be used. Albeit in this case it’s a small claims court, nevertheless, it does overload the courts. I think this is one step in the direction of trying to get some kind of uniformity and in reducing the amount of administration in the courts without, I am certain, overburdening the municipalities in trying to settle these cases. Secondly, it’s very often difficult for a small landholder, whether it’s a lot in the city or a small farm in the rural municipality, to pay for the fence in lieu of waiting for a payment by his neighbour sometime in the future. I think this may resolve some of the cases that come up; and will resolve them more quickly. It will clear the decks as far as payment is concerned without overburdening the administration of the municipalities or the amount of revenue the municipality raises during the course of a year. We obviously will support this particular amendment.

Mr. Isaacs: Mr. Chairman, I won’t respond to the comments of the honourable member for Waterloo North because I was pleased to hear his remarks in support of the amendment proposed by my colleague for Welland-Thorold.

The parliamentary assistant made some comments regarding consistency. I want to suggest to him that first of all, if he reviews the record on second reading of this bill, he will see I urged at that time that there are certain responsibilities that should be a municipal responsibility and certain things that should be a provincial responsibility.

I want to suggest to him that if instead of dealing with this bill before us tonight we were dealing with an amendment to the Municipal Act that empowered municipalities to decide how they wanted to deal with fence disputes within their own municipality, that would be saying that fence disputes are the responsibility of the municipality and would be supporting municipal autonomy in that area.

That’s not what’s before us tonight. What is before us is a provincial bill that says fence disputes are to be settled in this way. I am assuming, therefore, it’s the government’s belief, and I tend to go along with that, that fence disputes, like a lot of other legal matters, should be uniform across the province. If the fence disputes themselves are to be handled in a uniform way, then I don’t understand where municipal autonomy in regard to one very tiny and relatively insignificant portion of the whole process comes in.

I want to suggest to the parliamentary assistant that in section 10 of this bill, if a judge of the small claims court intervenes in the proceedings, then the costs incurred by that judge can be collected on the tax hill of the person concerned. In a subsequent section of the same bill, a similar provision exists, so there is already a precedent in this bill for part of the costs being collected on the tax roll for the persons who are involved in the dispute.

The amendment my colleague has introduced is saying if you can collect some of the costs that may be incurred in settling a fence dispute on the tax bills then why not make it so all the costs involved in a fence dispute can be collected on the tax bill. Rather than plugging up our small claims court or our court system with disputes regarding the recovery of funds that are awarded under this act, it would be so much simpler for them all to be collected on the tax bill against the party who is not paying them in a proper manner. I strongly urge support to the amendment introduced by my colleague.

[8:45]

Mr. McKessock: I would like to support this amendment as well. The municipality is going to collect and pay the amount of the fence, no matter whether we accept the bill as is or whether this amendment is adopted, so it is not going to change the amount of money or how it is going to be collected. It is only that the municipality will pay it immediately rather than waiting until it is collected on the taxes.

Government legislation is confusing enough without us allowing legislation to go through that we know will confuse. It will confuse because the bill allows the municipality to pass a bylaw to pay immediately, whereas this amendment would mean every municipality would have to pay immediately. Therefore, if we leave it the way it is, some municipality will pass the bylaw and others won’t. To amend it so every municipality will have to pay immediately will mean when a farmer in Grey asks me the situation on this bill, and when he is to be paid, the answer will be the same as when a farmer in Perth or in Bruce asks how the money is to be collected. The amendment will straighten it out so no matter where in Ontario the farmer asks how he gets his money, it will be the same, if we adopt this amendment. Therefore, I will certainly support the amendment.

Mr. Rotenberg: I am sort of wondering whether we should have made this change in the act at all. The present law, as it stands, does not provide for the municipality to pay out the money, but to pay it out as it is collected on the tax rolls. The government felt, and I think quite rightly, that if a municipality wanted, in effect, to advance the money they would be able to. I think carrying that to what I consider its illogical conclusion, to say the municipality must advance the money, is imposing a burden upon a municipality which, as a Legislature, we shouldn’t be doing. We shouldn’t, as I say, make them become a collection agency.

Many civil disputes are settled in the courts under many different forms of legislation. I don’t know of any other legislation -- there may be one, but I don’t know of any other one -- where after the judgement has been rendered, the public purse, in effect, lays out the money in a civil dispute between two private parties. Then the public purse has to go and collect the money from the party the judgement has gone against. I don’t know any other case of it. I think by making mandatory on municipalities, that the public purse must lay out the money when a judgement is rendered in a private dispute between two private parties, is setting somewhat of a dangerous precedent.

The member for Wentworth mentioned the judge gets paid. The judge is a public official and the court costs, as assessed, are far different from what is assessed between two private parties. I don’t think it is inconsistent, because in every other situation the court collects their money in a different way than the judgement against two private parties.

I really think the main point is this: the objection opposite seems to be that the courts are clogged enough and you would have a problem collecting. This doesn’t have to go back before the judge. Once the fence-viewers have a certificate, the certificate is filed with the small claims court clerk and the bailiff goes out and does whatever bailiffs do in order to collect the money, if the injured party wishes to proceed in that way. You file an execution against the party the judgement has gone against and the judge doesn’t get involved.

You don’t have to go and get a judgement summons. I think I mentioned that before and I was in error. You simply file the certificate. You get a certificate for the bailiff and out he goes and collects whatever he can from the person who hasn’t paid up. That is probably almost as quick as collecting from the municipality if you have to go through all these situations. In some of these very small rural townships, I think it can be a burden upon the part-time clerk who has to go ahead and go through all these situations in order to pay off on a judgement as brought forward by the fence- viewer. I don’t think we should impose this on municipalities. I really think we should not make it mandatory.

If having it optional really bothers the members opposite, I think maybe we should retreat to the previous situation and just say, “Go and collect by the judge’s summons, or wait till the man pays on his taxes,” but not allow anybody to advance the money. Quite frankly, if one wants no local autonomy, if one wants one rule for the whole province -- I would prefer that we not support the amendment.

On the understanding that amendment is not supported, if the opposition wants consistency they should bring forward another amendment saying in effect that no municipality can advance the money. It can go on the tax roll and as it is brought in it is paid out to the agreed party. I think that would be a much preferable position to the one the opposition is now bringing forward. So, again, I say I cannot support this amendment.

Mr. Swart: The pattern is going to be that we get up twice on amendments; there are two points I want to make, Mr. Chairman. First: this is not a private affair as private disputes normally are. The parliamentary assistant should know that in no private dispute in the courts does a municipality end up paying part of the costs. This is a municipal action and is not just a private action.

The second point I want to make on this has not been mentioned and I suggest the parliamentary assistant to a very large extent is setting up a straw man. Does he know that there are fewer than 10 cases a year in Ontario which go further than the fence-viewers? Is this going to be a major burden to the municipalities? Of course not. The costs are small, the instances are very few. This makes eminent sense.

Mr. Sterling: Mr. Chairman, I think there is one kind of example where the court gets involved in the collection of judgements and that is in cases in the family court where we are dealing with maintenance payments for children, for spouses Who are unable to take care of themselves. I think this government last year agreed with the principle that a clerk of the court or a public official should be actively involved in the collection of those funds.

When we are dealing with property rights, however, I beg to differ in terms of throwing on a public body -- and with all due respect to the member for Welland-Thorold, we are dealing with a private matter, we are dealing with two property owners. The fence-viewer is a semi-judicial person who is deciding the rights as between those two people.

I don’t know if the member for Welland-Thorold has had any experience of a dispute involving a fence-viewer, but I have had a few both in terms of my legal career and my public career. They are bitter disputes between the two individuals. Why should we throw the municipality in the middle of this particular dispute? It is between two private people, there is a decision made, they are talking about money related to property. Surely they can support and collect their own debt.

Mr. Chairman: All those in favour of Mr. Swart’s amendment will please say “aye.”

All those opposed will please say “nay.”

In my opinion the nays have it.

Amendment stacked.

Section 13 agreed to.

On section 14:

Mr. Chairman: Mr. Rotenberg moves that section 14(1) of the bill be struck out and the following inserted in lieu thereof: “(1) Where the fence-viewers have attended at premises pursuant to a notice given under section 4(2), section 11(8) or section 13(5) or (7) and have decided (a) that no award shall be made because they have no jurisdiction to make the award or because the owners of the adjoining lands have requested that no award be made; or (b) that no certificate or determination with directions shall be made, they shall prepare their decision in the prescribed form giving reasons therefor, and shall specify in the decision that the fees of the fence-viewers in respect of such attendance be paid either by one adjoining owner or by the other or that a specified portion of the fees be paid by each of them.”

Mr. Rotenberg: This does not in any way change the principle or the thrust of the bill. It simply clarifies, in response to the proper question raised by the member for Welland-Thorold and others, that section 14 seemed to be contradictory to section 7. Possibly a court somewhere down the line would make that interpretation. So upon his request we have redrafted this section simply to clarify that in section 7 the award is still mandatory, but section 14 provides for those cases where an award cannot be made and that the fence-viewers will still be paid. That is the reason for the amendment.

Mr. Epp: We support the amendment, Mr. Chairman.

Motion agreed to.

Section 14, as amended, agreed to.

Sections 15 to 17, inclusive, agreed to.

On section 18:

Mr. Chairman: Mr. Sterling moves that section 18 of the bill be amended by adding thereto the following subsection: “(2) No person shall initiate proceedings for calling on the fence-viewers to act under subsection 1 without the approval of the council of the municipality in which the road allowance is situate.”

Mr. Sterling: In many of the areas of eastern Ontario there are many unopened road allowances. When reading this section, and with some experience in this matter, I became concerned that if a fence is erected on the centre line of an unopened road allowance it could restrict the use of that unopened road allowance for people who are using it as access to property which is otherwise inaccessible.

Therefore, under an earlier section of the act, section 11(8), the process of notifying adjacent owners goes through the clerk of the municipality in the normal circumstances. One owner comes in to see the clerk and says, “I want the fence-viewer to go out and adjudicate between myself and a neighbour.” The problem with involving just the two adjacent owners is that the erection of the fence along the centre line can have a detrimental effect on a person who is using that as private access to his property which is beyond those two properties immediately concerned.

Another problem is that if, for instance, land is unfenced and all of a sudden the owner of one of the properties decides he would like his land fenced, he goes to the clerk of the municipality. The clerk then notifies the other owner and in seven days, I believe it is -- a short period of time -- the fence-viewer comes and makes an adjudication. If that decision comes down quickly, one of the parties can immediately move to begin erecting the fence.

This gives very little notification, not only to the third party. I mentioned before that the party who is being served the notice often is unaware of what the act is about. He has never seen a fence-viewer nor does he know what his rights are. I have had some personal experience with people who have used the unopened road allowance for access to their property. In effect what has happened is that, by erecting the fence down the centre line, usable access to their property has been cut off.

[9:00]

What I intend to do in this subsection is, first of all, initiating the action through council when dealing with an unopened road allowance so that they will be notified of the circumstance, and not the clerk alone, so that rural councils will be very well informed as to where open road allowances lie and what people are using them as access to their property beyond. Then they could take into consideration the third party. They might say to an individual who wants a fence on the centre line: “You can’t have it because a third party down the line needs it.”

Not only that, but they can also consider the problem of someone giving a little more time and explanation to an individual who is using not only the portion that would be within his half of the road allowance, but may be in the other part of the road allowance, for a practical access to his property. What I am saying here is it may be argued that it is included in the first part of the section in that the municipality can say to anyone he doesn’t have the right to half the property, but the problem is that the process is set in motion prior to this fact coming out.

Ms. Haggerty: I would like to address myself to section 18 and particularly to the amendment. I think the member for Carleton-Grenville is quite right in moving this particular amendment to section 18 of the act where the line fence can be constructed or built along an unopened road allowance, that is, down the centre of the line.

My concern is that it may have some benefits to farmers or the persons in the agricultural industry, but I think the member is quite right in that it will deny access in many cases, for example, in my particular area, where there are a number of unopened road allowances going to a body of water such as Lake Erie. In this particular instance under section 18, if we permit a fence to be constructed on an unopened road allowance, it will deny the public access to that body of water.

I don’t have to remind the House of my feelings relating to access to the shores of Lake Erie in my area, where the public for a number of years has had difficulty getting to the lake. In many cases, they have to use 66 feet of a road allowance and they would be packed in there like sardines in a can. On the other side of that road allowance, there is half a mile of vacant beach.

A decision of the Supreme Court of Ontario was handed down, I believe, in 1975 by Mr. Justice Stark. Because the public had no access to that body of water because of a fence denying that right, he passed on to the adjoining property owners on the side of the road allowance title to the lakeshore, which certainly in the long run denied the public access to the remainder of that lakeshore which is crown land. It was crown land in this particular instance.

I suggest to the member piloting the bill through the House tonight that I would like to see section 18 of the bill withdrawn for the simple reason that that removal will solve problems there. In my area, it certainly will. Otherwise, I can see more fences being erected along these unopened road allowances denying the public access to them.

I just could not support any particular instance where we would permit a fence down the middle of the road. When you come to the end of the road, you will see the fence either going right or left and blocking off the public. I think it is most important when it comes to a body of water, a lake or stream in Ontario that under that particular section we are going to deny the public access to that lake or river or stream.

I could accept an amendment, if the member would consider it that there should be public notice of the intent of the adjoining property owners to put a fence down the middle of the road, and not only just to notify council. Sometimes council can be a little bit lax in its duties, and these things can be slipped through without the public being aware of it and the fence erected.

I suggest an unopened road allowance should remain in public control at all times. I can see the problems not only with the Lake Erie shoreline but in almost every cottage area in the northern part of the province and in southern Ontario as well.

I commend the member for bringing forth that particular amendment because it does draw to our attention that there are problems with section 18 of the bill.

Mr. Swart: Mr. Chairman, I will be brief. I agree with the amendment which is proposed and commend the member for Carleton-Grenville for catching this and introducing it.

The comments by the member for Erie should be given some attention. They commend themselves to some attention. Although there may be no problem in this regard in the rural areas, as the member rightly points out, in the Niagara Peninsula where the road allowances are the only access to the beaches in many areas, and where there is a great deal of interest in maintaining those open, apart from perhaps even the local municipality, there probably should be a notice given if a fence is going to be installed.

I recognize that most types of fences are not very permanent structures, and could be taken down. But once a fence is installed that becomes very difficult, so probably public notice should be given in addition to the amendment which is here.

I’m not sure how we handle that at this time, unless we want to stand this section down to endeavour to incorporate that proposal. It seems to me that’s the way we should deal with this.

Mr. Rotenberg: Two points, Mr. Chairman: Firstly, I will support the amendment from the member for Carleton-Grenville. But I would point out that what he is putting explicitly in the amendment is already implicit in legislation.

That is, it’s all very well for two adjoining owners to say they’re going to fence off the road allowance, but as the act says in effect at the end of this section, they deem to do so at their peril. No one can walk on to public land and put up a fence without the consent of the municipality. Some people may do it, but they shouldn’t be able to do it.

I think it’s well if this is done explicitly in the act, as the member has brought forward in the amendment, so it is explicit. That way, everyone knows before he can put up a fence between two adjoining properties, he has to go to the municipality and the municipality does whatever it does to give notice.

I share the concern of the member for Erie but I would point out that this act does not give the municipality any powers which it does not have now. As I understand the law, and it’s another section of the act, a municipality can close and fence off an unopened road allowance at any time without reference to anybody, without giving notice. That is a power a municipality now has.

Mr. Haggerty: They have to do it by bylaw.

Mr. Rotenberg: A municipality can close up an unopened road allowance at the present time.

Mr. Swart: An unopened road allowance?

Mr. Rotenberg: Unopened.

Mr. Swart: They can’t do that without taking lengthy procedures.

Hon. W. Newman: Oh, yes they can.

Mr. Rotenberg: Mr. Chairman, if it is an open road, then they have to give notice. It’s a whole procedure. But they can close an unopened road allowance, just sitting there all by itself, without giving notice to the adjoining owners.

Hon. W. Newman: They do it all the time.

Mr. Rotenberg: I’m sorry they have to give some notice.

Mr. Swart: Of course they do.

Mr. Rotenberg: We’re not taking any of that power away. We’re not changing any powers. This act only deals with fences, whether or not you put up a fence. The member for Erie is concerned, and I understand his concern, that maybe municipalities have too much power in being able to close up unopened road allowances.

If it’s an open road allowance leading to water, for instance, which is the member’s concern, there has to be permission from this government to do it. But for an unopened road allowance, there doesn’t have to be.

I would suggest to the member for Erie this matter should not be dealt with in the Line Fences Act. If there is a loophole in the act which would allow municipalities to close up unopened road allowances which are being used for access roads, I’d suggest that should be reviewed in the proper section of the Municipal Act and not be dealt with in the Line Fences Act.

As the member for Erie has a problem of concern, I’ll undertake with our staff at least to review those sections and discuss them at some early future date with him to see whether or not we do need some changes in the proper section of the Municipal Act. But I would suggest to him the proper place to put in the caution, and to make sure the rights of citizens who use unopened road allowances are not taken away, is not in the Line Fences Act but in the general municipal legislation that deals with closing and opening road allowances.

So I would hope we would carry the clause as amended here and catch up with the other problem at a future date.

Mr. Haggerty: I’m trying to grasp the comments from the member. This concerns any person who has property that adjoins a road allowance -- it doesn’t have to be a person in the agricultural industry; it can be a cottage owner or a person who has lakefront property that adjoins or abuts an open road allowance. This would permit them to put a line fence up the middle of the road and at some place before the end of that fence branch off either right or left and close it off to the adjoining property owners. It’s a common practice of Americans along the lakeshore of Lake Erie. They’re doing it every year.

By permitting this, when it comes to a court decision, whether it’s under the Quieting Titles Act -- I guess that’s the name I’m looking for -- or some other decision of the court and the Chief Justice starts making decisions to give owners of abutting property the right of access to lakeshore properties -- he says they maintained the lakeshore because the public did not have access to it -- if you permit a fence through a centre line of an unopened road allowance, you’re going to deny public access to that lakefront property. Then usually once a precedent had been established in the Supreme Court it’s a routine matter. The entitlement the public may have to that lakefront property will be lost forever.

That’s the point I’m raising. You’re going to permit a new angle for these property owners to deny the public access to a body of water.

Mr. Ruston: That a good point.

Mr. Sterling: I don’t know whether the decision the member for Erie is referring to would relate to this specific type of problem.

I mentioned third parties when I was talking about the rural municipality problem I basically designed this amendment for.

I didn’t want to encumber the municipality with having to advertise in newspapers on every line fence that occurred between two adjacent owners. I think that would be too expensive for them in terms of the type of problem I was thinking about.

I appreciate your problem in saying there should be public notice in relation to the right of way to the water. But with this amendment whereby the municipal council has to have it brought to its attention, surely the people should be able to rely on those municipal councillors to protect their rights rather than allowing two property owners to benefit at the expense of the public as a whole.

I can understand the member for Welland-Thorold’s reason for wanting the public to know, but in practical terms, it would be extremely expensive for many small municipalities to follow that rule.

I also think section 18 is explicit that under this particular section, which would become section 18(1) as it now stands, although the party would occupy that land there is no title conferred on that particular party. I don’t know which decision the member for Erie was relating to when he was speaking on this matter.

[9:15]

The third thing is in many instances municipalities would very much like adjacent owners to take on the road allowance so that it can be properly cared for. They would in fact like a line fence down the middle. So I don’t think an outright prohibition for doing that is proper either.

I basically designed the section to allow the municipality, the municipal council, to have notice of it and would hope they would act in a responsible manner in protecting the rights of the various individuals in the municipality.

Mr. Swart: The more I listen to the debate, Mr. Chairman, the more I am convinced we should stand this amendment down until we do draft -- unless it can be done quickly now -- provisions for some form of public notice. At the end of this clause it might read something like: “and further, wherever permission is given by council, it may only be given after due notification has been made as if the road allowance were to be closed.”

I can see that in effect this could stop off the use of a road allowance. An unopened road allowance is somewhat difficult to determine. I think I am right in saying from my municipal experience that an unopened road allowance is one upon which a municipality has spent no money. That is the interpretation of it. There are all kinds of unopened road allowances the public use throughout this province where the public has a real interest -- and, as I said before, even from another municipality.

It seems to me if you are going to put a fence down the middle of that road it effectively stops the use of that road. Even a council might want to stop off that road and not have to go through the due process and the public interest would be hurt.

Therefore, I think the amendment should be stood down. Everyone in the Legislature -- most perhaps, except the parliamentary assistant behind you -- is in favour of your amendment. But I think it should be stood down until we refine it to that degree, because I am afraid the public interest will be hurt if it goes as is.

Mr. Isaacs: I have just one point to add to the comments my colleague from Welland-Thorold has made. I would ask the member for Carleton-Grenville what provisions he has in mind for reopening the unopened road allowance, if that is the right word -- I mean removing the fence. If at some time after the adjoining owners have been required to pay for it under the terms of the Line Fences Act and the council subsequently decides it wishes to return the road allowance to whatever use it was previously being put to, does the council automatically have the power to require removal of the fence without compensation to those who have paid for it? In these circumstances the abutting owners are really taking quite a gamble on what might happen in the municipality in terms of the whim of the local council.

Thank you very much, Mr. Chairman. I appreciate the clarification.

Mr. Nixon: Are those nods recorded in Hansard?

Mr. Sterling: The reason behind my amendment is to clarify the process which the people must go through to avoid exactly what you are saying -- that one of the owners gets on the wagon before people realize what is going on, so he has half of the fence up and all of a sudden --

Mr. Swart: I know the intent; I think it should go that much further, that’s what I’m saying. The intent is good.

Mr. Sterling: I only argue about the public notice in terms of small rural municipalities where this normally would happen. It would be extremely expensive for them to go through that process.

Mr. Rotenberg: The whole purpose of section 18 is not to change the law on closing or opening of road allowances, and it is not to confer rights on anybody. The whole purpose of section 18 is to provide that where, with the consent of the municipality, the two adjoining owners are going to fence down the middle of the unopened road allowance, they can call in the fence-viewers. That’s the purpose of this section -- to have a mechanism where in that circumstance the fence-viewers can be called in. In my opinion it doesn’t confer any other rights on the adjoining owners or relieve the municipality of its moral obligation.

It would seem to me if any council is going to give its approval, depending on the circumstances, if it is in any way responsible -- and we assume all municipal council members are honourable and responsible -- it will use its discretion where notice should be given and where it shouldn’t be given. I can’t imagine a council giving permission in the case the member for Erie raises where the road allowance goes down to the water and they are going to let two private owners grab that allowance and not let the people who vote for them have access. If they did that they’d find themselves out in the street after the next election.

But there are the cases where the member for Carleton-Grenville says that --

Mr. Swart: In the Niagara area that’s been done already; many of the road allowances to the beach have been closed.

Mr. Haggerty: You are just going to compound the problem.

Mr. Rotenberg: What I am saying really is that this section of the act provides for the fence-viewers in most cases. But as long as it is indicated it must be with the permission of the municipality, whether this act is here or not or whether we change it or not, the municipality can close that road allowance and not put a fence up and we’re not tackling the problem.

As I said earlier, with respect to the member for Erie and others, that if there is a problem in the general legislation, let’s look at the general legislation. Let’s not apply a Band-Aid if there is a problem in the Line Fences Act and then for other reasons not tackle the problem. For this reason I think it really isn’t necessary to put a notice provision in this act. But if a notice provision is needed in the general act, then I think we should look at the general legislation.

Motion agreed to.

Section 18, as amended, agreed to.

Sections 19 and 20 agreed to.

On section 21:

Mr. Chairman: Mr. Rotenberg moves that subsections 1 and 2 of section 21 of the bill be struck out and the following substituted therefor:

“(1) If any tree is thrown down by accident or otherwise so as to cause damage to a line fence, the owner or occupant of the land on which the free stood shall forthwith remove the tree and repair the fence.

“(2) On the neglect or refusal of the owner or occupant of the land on which the free stood so to do for 48 hours after notice in writing to remove the tree, the injured person 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 him for any such removal.

“(3) A person who repairs a fence under subsection 2 may recover the cost of the work in the same manner as an owner under section 11(3) may recover the value of work done by him.”

He further moves that the present subsections 3 and 4 be renumbered sections 4 and 5 respectively.

Mr. Breithaupt: Mr. Chairman, could I raise a point with the parliamentary assistant? He refers to the injured person. Surely we don’t expect the free fell on this poor chap. Would he not prefer to have it, “adjoining landowner”?

Mr. Rotenberg: I’m not a lawyer and my lawyers have implemented what should happen. An “injured person” doesn’t mean injured in the physical sense. That means injured in the monetary sense. I think it’s clear in law.

But the purpose of this amendment is simply this. In reviewing the legislation -- and this clause was taken from the clause in the previous act -- I think the clause as now written goes too far. It provides of course for removal of the free and repair of the fence, but also provides that the fence-viewers can adjudicate as it says, “and otherwise make good any damage caused by the falling of the tree.” The free can fall over on the barn, the tractor, the hired hand, or the farmer’s wife and you could be into a several hundred thousand dollar lawsuit being adjudicated by the fence-viewer.

This was never anticipated in the Line Fences Act and shouldn’t be in the Line Fences Act. The fence-viewers should be limited in their jurisdiction to judge on repairing of fences and getting the tree out; any other damage should be referred to some other jurisdiction.

Simply, the purpose of this amendment -- and it’s long in wording in order to clarify it all -- is to remove from the fence-viewers the apparent power to adjudicate other than damage to the fence and removal of the free. We don’t think the fence-viewers should have that power.

Mr. Breithaupt: If I may for a moment, what you have done is suddenly cited one of the most ancient maxims of English law, which is, “Whatever moves to do the deed is deodand and forfeited.” If the free branch falls on your neighbour’s house, presumably you get to keep the branch, for whatever good that may be. But I still suggest to you that “injured person” here -- other than of course the hired hand or the farmer’s wife, to which the parliamentary assistant referred -- is still, at least in my opinion, not the right phrase. I think you should be dealing with the adjoining landowner to ensure since servient and dominant tenements are not involved in this kind of legislation at this point -- that you have the parties more clearly defined.

Mr. Rotenberg: I would bow to the superior legal knowledge of the member for Kitchener and would accept -- or we can just take it as a correction to my amendment -- that in the fourth line of subsection 2 “injured person” be replaced by the words “adjoining landowner.”

Mr. Epp: The amendment is self-evident and we will support it.

Mr. Swart: We will also support the amendment.

Mr. Haggerty: I am going to be raising Cain here tonight, Mr. Chairman, if you can put up with me, but I am looking at this particular section again. I must apologize for not being here on second reading, but the member knows there are other committees meeting in this assembly building, and I am sure I was at the Hydro select committee meeting on that particular night.

The point I bring to your attention is that the bill says “line fence.” There is compensation if a tree from an adjoining property owner falls on the person’s land next to it and damages result. I wonder, does “line fence” delete the responsibility of a municipality in a sense? Say you have a line fence along a road where you have a tree along the road allowance fall down on the farmer’s fence and he is forever going out there repairing it. If an automobile hits the fence or a vehicle hits the fence, sometimes the farmer has a hard time collecting damages for that lost fence.

Again, you can have a municipality, for example, which has a line fence just alongside a read, which the farmer pays the complete cost for and it is not shared by the municipality. But under today’s snow removal methods carried out by municipalities -- and I don’t know if this has been brought to the attention of the parliamentary assistant or not -- in my particular area, and I am sure in any snow-belt area where heavy snowfall occurs, particularly along a county road where they have a 90-foot or 120-foot width and they have to find someplace to dump that snow -- and I don’t have to tell you where they dump it; they come with big payloaders that carry 12 cubic yards or eight cubic yards, and pick it up, and where do they move it? Right over on top of the farmer’s fence.

I will tell you, I have seen a farmer threaten to shoot them with a shotgun, because every year he has to go out and spend money. It is expensive to put a fence up today. I think I put up 660 feet and it cost me around about $800 or $900. That is expensive, and you can do much of the work yourself.

But all I am suggesting to you here is that I think when we come to compensation there has to be some place in this act so that where a municipality dumps snow deliberately on a farmer’s fence, it should be held responsible for it. I would like to see something someplace along here so that when you say a “line fence” it includes a municipality road, so that they do have some obligation to pay that farmer for the damages they are doing to his property.

If it is for the sake of the public, to get a person to work without him losing his $8 or $10 an hour, surely the farmer must be compensated for that opening of the road, with the speed that some municipalities open it and dump the snow on his property. Surely there is enough width on that 66-foot road allowance to keep the snow there without dumping it on the fence.

I bring that to your attention. I think it is time there should be something in the act because in many cases it is done deliberately by a municipality. If they are removing snow, instead of throwing it against the wind they can come over to the other side and take it and let the wind go the other way with it, which wouldn’t do too much damage to either side of the fence. But it is expensive to a number of farmers in my area who have to put fences up there year by year.

[9:30]

Mr. Rotenberg: To reply to the member for Erie, this clause in no way interferes with the general liability laws and in no way precludes the rights of one owner, be it public or private, from suing the adjacent owner. In effect this clause simply extracts from liability law the problem of a free falling on a fence, and makes it specific that fence-viewers get into that dispute. If a snowplough comes along and damages a fence, this does not take away any rights the property owner may have to sue or not to sue the municipality or township or whoever came along and damaged his fence.

In this legislation, I do not think one can provide for all the ways a fence can be damaged. A tree falling on a fence is one that historically has been a problem and has been within the jurisdiction of the fence-viewers for many years. No other liability section has and, as I say, it does not preclude the owner from exercising his rights under liability law against whoever damages his fence, be it another public or another private person.

Mr. Haggerty: What the parliamentary assistant has said might be quite all right, but let’s take another approach: Under the Municipal Act -- I believe it is -- a county, regional or municipal road crew has the right to go in and put up snow fences some 300 or 400 feet inside that fence. Sometimes that snow will be just held back enough to hit that fence and pile up. It can be rather heavy snow, which is there for a number of months. As spring comes, the fence is ripped right off the post and damaged.

Does the parliamentary assistant not think there should be some liability to the municipality in this particular instance? It is a line fence and they are being permitted by legislation to go on private property to put up a snow fence to keep the snow from settling on the roads, et cetera, but it settles on the line fence. Again, this is where the farmer has to pick up the tab for repairing that fence. There should be some form of compensation in this bill to protect that line fence owner.

Mr. Rotenberg: Mr. Chairman, with respect, if there is some other provision in our legislation which allows the municipality or the province to put up a snow fence on someone’s land, and because of that there is damage done to the private property, there is, first, the recourse under general liability. Second, if there is a lack in that section of whatever legislation it is, again, I think it should be dealt with under the section of whatever legislation allows the public body to put up a snow fence. In other words, we should put in that legislation some form of compensation if the snow fence does damage, or if as a result of the snow fence, damage is done. I don’t think it should be put in this particular act.

Mr. Haggerty: I want to carry this a little bit further. I think through the experience of the honourable member, sitting on local council as an alderman in this city, he knows the routine when persons want to collect for damages from the municipality. We have insurance that protects the public in a sense, and if one is lucky enough, one can collect it. When one goes to the insurance persons responsible for selling it to the municipalities, they always say, “Don’t worry about it, gentlemen; we will look after your interests.” I say very few persons have been compensated for holes in roads or anything.

Mr. Hennessy: They don’t live that long.

Mr. Haggerty: That is the type of insurance they have in municipalities. I say it is costly for any citizen to take on the city fathers because there is just no possible way they can win the costs involved. I am saying there should be some form of compensation here, relating to a line fence along a regional, county or municipal road, because it costs money to erect these fences. Surely, if the farmer’s cattle get out on the road, he would be held responsible for the accident.

Mr. McKessock: Mr. Chairman, in this section it is stated that when a tree falls on a fence, if the party owning the tree doesn’t remove it, then the other party can have the tree for repairing the fence. That is a little bit laughable because probably most of these frees that fall will be dead elms and won’t be worth very much. I think it would be much better if this cost was shared, as in the rest of the Line Fences Act, rather than say he gets the tree as compensation.

Motion agreed to.

Section 21, as amended, agreed to.

On section 22:

Mr. Chairman: Mr. Epp moves that section 22(1) of the bill be struck out and the following substituted therefor:

“(1) This act applies to lands owned by a municipality and to lands owned by a local hoard within the meaning of the Municipal Affairs Act, including conservation authorities.”

Mr. Epp further moves that section 22(4) and (5) be deleted.

Mr. Epp: As we have discussed earlier, this act applies to private lands. It has to this point omitted the obligation by the municipality or by local boards to have their share in the settlement of these disputes. Further on, it does include conservation authorities.

We believe very strongly that municipalities, as well as the other crown agencies, should be as responsible as individuals with respect to line fences. The municipalities have a lot of land, as does the province, and they should be included in the settlement of disputes. That is the reason for this amendment, so they will be included in this act.

Mr. Swart: I rise to support this amendment. I think we know this, perhaps more than any other single matter, is a concern to the Ontario Federation of Agriculture. Even the Rural Ontario Municipal Association, the one that would be involved in the cost, have come out in support of the principle that local governments should have to pay their share of line fences, the same as with anything else.

Hon. W. Newman: When did they do that?

Mr. Swart: It might be appropriate to read something for the edification of the Minister of Agriculture and Food pertaining to this. This is from the Rural Ontario Municipal Association, “ROMA report on Bill 17, An Act to revise the Line Fences Act, as endorsed by the Municipal Liaison Committee, May 1979: As requested by the ministry, the ROMA board reviewed a number of amendments to Bill 17 proposed by the NDP. After considering these amendments the board adopted a motion endorsing Bill 17 with the following changes.” They include almost all the amendments we have proposed, including the one we are talking about at the present time. The wording is slightly different; we just said you delete the section. They make the positive statement. It was in response to your own ministry that they supported the NDP proposals.

When they have that feeling among the municipalities themselves, not only the rural municipalities but the Municipal Liaison Committee representing all the municipalities of this province, it seems to be reasonable, therefore, that this should be included.

The reason it was mentioned by the member for Waterloo North is that conservation authorities under the act have to accept that responsibility as is proposed. Municipalities in many instances will have parks similar to those of a conservation authority. What sense does it make if a conservation authority has to pay its share of a line fence between the authority land and a farmer’s land, and a municipality would not have to make any such payment? To be consistent, a municipality should have the same responsibility.

There is a very real principle involved. The principle involved here is that a municipality, a public body, should accept the responsibility it imposes on other people. It shouldn’t be exempt. If it is fair that an abutting owner should have to pay for half of a line fence, whether that abutting owner happens to be a municipality, private owner or conservation authority, then that body should pay its rightful share.

I would ask the member for Waterloo North who introduced the motion if he would be willing to accept a slight change. Although in this party we agree with the amendment, it seems to me there should be some slight changes in it to more accurately fit the situation. I wonder if we shouldn’t say, “subject to section 18, this act applies to lands other than lands that constitute a public highway,” and then add the words “or unopened road allowance.” It seems to me that unopened road allowances should be normally exempted, except that through section 18 you could put it down the middle of the road. Otherwise, a municipality would have to pay for its share of a fence on both sides of an unopened road allowance. I would suggest that that perhaps should be added in there.

I am just wondering if he would be willing to accept that as part of his amendment. I won’t formally move it at this time as he may be willing to accept it.

Mr. Epp: If I may just clarify that, we have two other amendments on sections 23 and 24. I believe that my amendment for section 24, which says, “Notwithstanding sections 22 and 23, this act does not apply to any lands that constitute a public highway,” would in actual fact respond to and answer the question the member for Welland-Thorold has raised.

Mr. Swart: I am not sure that a public highway includes an unopened road allowance; in fact I think it does not.

Mr. Rotenberg: I am informed that it does.

Mr. Swart: It does? I’ll bow to the lawyer.

Mr. Rotenberg: Just to follow up on the latter remarks of the member for Waterloo North and just so it will be on the record, I gather that if his amendments to sections 22 and 23 carry, the member for Waterloo North is committed to putting his amendment to the new section 24 and his party supports that amendment. Is that correct?

Mr. Epp: Yes.

Mr. Rotenberg: Under those circumstances we will not oppose the amendment to section 22.

Mr. Chairman: Are there any further comments on the amendment?

Motion agreed to.

Section 22, as amended, agreed to.

On section 23:

Mr. Chairman: Mr. Epp moves that section 23(1) of the bill be struck out and the following substituted therefor:

“Except as otherwise provided in subsections 2 and 3, this act applies so as to bind the crown in right of Ontario.

“(2) This act does not apply to lands of the crown in right of Ontario that at no time have been disposed of by the crown in right of Ontario by letters patent, deed or otherwise.

“(3) Notwithstanding any other provision in this act, an award made under section 7 in respect of lands vested in the crown in right of Ontario shall not require the crown to be responsible for more than one half of a fence or to pay to the adjoining owner an amount exceeding 50 per cent of the cost of the fence.”

Mr. McKessock: Mr. Chairman, I was disturbed when this bill came out that the crown and municipalities were not included. There is a large amount of government land in Grey and Bruce area, comprising Niagara Escarpment, Natural Resources and conservation authority land. I have also had some complaints about fence repairs to some of this land.

My feeling was that if the government is going to compete with people to buy land and become a land owner, then it must take the responsibilities that go along with owning land, the same as the rest of us. I am sure my neighbour wouldn’t mind if he were exempt from the act either, but the act forces him to become a responsible land owner as far as line fences are concerned. If the government is going to be a land owner, it must not be exempt from the responsibilities.

[9:45]

This government, I believe, professes to be a free-enterprise government. If that is the case, in a free-enterprise system everybody must be treated alike. If the government is going to compete with you and me to buy land, Mr. Chairman, they must accept the same responsibilities and be responsible landowners.

Mr. Swart: Mr. Chairman, I support this amendment, particularly subsection 1. I regret the mover did not speak on his amendment because I’m a bit puzzled as to why he has put in the qualifications of subsections 2 and 3.

It seems to me that the crown, the same as a municipality, should have to accept its obligation, whether or not the land has ever been disposed of by the crown, I can think of many farmers in northern Ontario, particularly up around Sault Ste. Marie, who have a farm, and the boundary of that farm is against crown land which has never been disposed of. Why shouldn’t the crown have to pay part of the cost of a fence? It’s not just to keep the farmer’s cattle in; it’s to keep other animals out. You should have the fence-viewers view that and determine what proportion should be paid by each.

It bothers me that subsection 2 is included in this and also subsection 3, which states that: “Notwithstanding any other provision of this act, an award made under section 7 in respect of lands vested in the crown and the right of Ontario shall not require the crown to be responsible for more than one half of the fence or to pay the adjoining owner an amount exceeding 50 per cent of the cost of the fence.”

Once again, I could see circumstances under which the crown should pay more than one half of the cost of the fence, just as perhaps in some instances the farmer should have to pay more than one half of the cost of the fence.

What about a large provincial park? It may have been rather virgin land along a lake, with some farms in behind it, and the government has come along and bought it or used this virgin land for a provincial park. It could well be that, as happens on occasion, the people frequenting that provincial park may be doing damage to the farmer’s property. The farmer was perfectly satisfied without a fence or with a very cheap type of fence, but once the park is there he needs a good quality fence. If the location of the park has caused this, it might be reasonable that the crown should have to pay more than 50 per cent of the cost. We’ve now established pretty clearly, 50 per cent of the cost, except in very extenuating circumstances.

That might cause the member for Waterloo North to reconsider whether in fact subsection 3 -- and subsection 2 for that matter -- should remain here. We in this party are inclined to move an amendment to this amendment which would delete subsections 2 and 3. But perhaps before my colleague from Wentworth speaks, the member for Waterloo North would like to make some comments on this, in case there’s something we have overlooked.

The principle that the crown and a municipality should accept the same responsibility as other landowners is sound, and I’d like to see it included here, in exactly the same way we included it for the municipality. Therefore, I am inclined, subject to any further discussion, to take out subsections 2 and 3.

Mr. Epp: Mr. Chairman, we’ve had a considerable amount of discussion on these lands. The lands of which we speak are those which obviously have not been sold by the crown. In a sense they are virgin lands the crown has owned since day one, I guess.

We felt that there was no particular reason at this time to include these lands in the act. There was no compelling reason for this and as a result it was felt in our judgement that there might be expenses the crown would have to absorb, or situations they would have to get into which really weren’t necessary. So it was our judgment that the crown, as far as unpatented lands were concerned, should be excluded.

Mr. Rotenberg: I have two very brief comments on the point from the member for Welland-Thorold. When a fence is needed around a provincial park it has been the policy of the Ministry of Natural Resources to build that fence totally at the provincial expense. Also, when a piece of land is purchased from unpatented land, usually the agreement of purchase includes an agreement with the crown for fencing.

Again, as in the previous section, on the understanding that the member for Waterloo North is going to move his new section 24, we will not oppose his amendment to section 23.

Mr. McKessock: Subsection 3 is really doing the same thing for the government as it is for the farmers paying 50 per cent, so I can’t see any reason why that should be stroked out. The bill in the first place didn’t have the government in it at all; to have them in now and paying 50 per cent is much better than not having them pay anything.

As far as subsection 2 is concerned, the lands are mainly up in northern Ontario and out of the farming area. Where this act is going to take effect mostly is in the farming areas of southern Ontario, so I can’t see that binding the crown to these undeeded areas has much purpose.

Mr. Chairman: Mr. Isaacs moves that the amendment be further amended by deleting subsections 2 and 3.

Mr. Isaacs: I think the arguments have pretty well covered the amendment to the amendment I have introduced. I want to suggest to the previous speaker that if the size of the award is unlimited in terms of individual property owners, except there is guidance there that it should be 50 per cent, then why is that guidance not sufficient when dealing with crown lands to absolutely bind the fence-viewers that the award made against the crown shall be 50 per cent? It seems to me to be unnecessary.

With regard to the comments from the member for Wilson Heights, I suggest that we should not be relying on the good graces of the government to provide fences around provincial parks. We are putting legislation in place that may last for another 100 or more years. If that is the case, and if the government of the day were to change and the Rhinoceros Party were to be running this province --

Mr. Rotenberg: They’ll get there before you do.

Mr. Isaacs: -- then perhaps it would be appropriate that we have this legislation specify that the award can be made against the crown to provide fences around provincial parks or around any other kind of provincial enterprise -- and there are plenty of those.

So, Mr. Chairman, I really think subsections 2 and 3 detract slightly from the intent of this amendment which I otherwise fully support and I would strongly suggest that the amendment to the amendment be carried.

Mr. Rotenberg: I would just indicate we cannot support the amendment to the amendment and we couldn’t support the bill if the amendment to the amendment carried.

Mr. Swart: Mr. Chairman, I wonder quite seriously whether my colleagues on the right really considered the implications of this amendment with regard to the north. There is a large area in the north where there are a great many boundaries between farmers and crown land which has never been deeded from the crown. I suggest hundreds of miles of such boundaries exist and what we are really doing if we pass this in its present form is applying one law to the farmers in southern Ontario and another law to the farmers in northern Ontario. In southern Ontario there is no crown land -- or very little; I know of none; there may be some -- which has not been deeded from the crown. This can be a real hardship on the farmers in northern Ontario. They have to pay for the cost of maintenance of the fence all around their farm because it is abutting virgin crown land.

Even at this late date I would appeal to the Liberal Party to change its position on this and to join with us in deleting these two subsections, because they are very, very discriminatory against certain farmers in this province and particularly the farmers in the north. I don’t really think this was the intent of the amendment, but I suggest that is the application.

I repeat, if this passes those farmers in northern Ontario who abut virgin crown land will have no recourse but to pay the total cost of the fence which separates them from that crown land; they will have to pay it all themselves, and I wouldn’t like to think this is the intent of the Liberal Party.

Mr. Epp: I want to clarify two points. One is that it is not discriminatory to the farmers in northern Ontario. Suggesting that there is no crown land in southern Ontario and therefore it is discriminatory against northern Ontario -- that is not the case; there is crown land in southern Ontario.

An hon. member: Virgin crown land?

Mr. Epp: Second, this act does not preclude the province from making a settlement along a line fence with a private property owner. It only says the crown is not obligated to do so; it does not preclude, as the member for Thorold-Welland suggests, the crown from getting involved and paying their fair share and often paying --

Hon. Mr. Welch: It is Welland-Thorold, not Thorold-Welland.

Mr. Epp: I am sorry, I got my alphabet wrong. We go from W to T, rather than T to W.

It does not preclude the crown from doing so, as the member for Welland-Thorold suggests.

Mr. McKessock: Mr. Chairman, I would like clarification of the statement the member for Wilson Heights made about the amendment to the amendment.

Mr. Rotenberg: Basically, subject to a section 24 being brought forward, we will not oppose this amendment. As the member for Waterloo North indicated that a section 24 which will exclude roads from this amendment will he be introduced, we will not oppose it.

Mr. McKessock: What about the amendment to the amendment?

Mr. Rotenberg: We will not support the amendment to the amendment.

Mr. Chairman: All those in favour of Mr. Isaacs’ amendment to the amendment will please say “aye.”

All those opposed will please say “nay.”

In my opinion the nays have it.

Amendment stacked.

[10:00]

On section 24:

Mr. Chairman: Mr. Epp moves that the bill be amended by adding thereto the following section:

“24. Notwithstanding sections 22 and 23, this act does not apply to any lands that constitute a public highway.”

He further moves that the existing sections 24 to 30 of the bill be renumbered as sections 25 to 31.

Mr. Epp: We have had a lot of discussion with respect to this section as it pertains to sections 22 and 23. It was felt there would be an undue burden if the lands that constituted public highway were not excluded from this act. As a result, we have moved they be excluded.

Mr. Swart: We, of course, have that provision in the amendments we had originally submitted and we are obviously going to support that amendment at this time. I do have another amendment to section 24 as well.

Mr. Chairman: Any further comments on Mr. Epp’s amendment?

Motion agreed to.

Mr. Chairman: Mr. Swart moves that section 24 be amended by adding, after the words “subsection 1 of section 354 of the Municipal Act is enforced,” the following words: “but the provisions do apply in respect of land in such a municipality which is used by any owner for agricultural purposes.”

Mr. Swart: Mr. Chairman, we are moving this amendment because we think the situation since the original act was enacted has changed so substantially that there is no longer the arbitrary division between the urban and rural municipalities there was 30, 40, 50 or 60 years ago.

We know municipalities have the power under section 354 of the Municipal Act to take over responsibility for fences including line fences to regulate them. That section of the act applies mainly to and was intended to apply mainly to urban municipalities. It gives them the power to limit the heights of fences, particularly on corner lots. In every respect it applies to those municipalities and it is much more arbitrary than the Line Fences Act which gives either owner the right to appeal and a great many other rights.

It seems to us in this party there are farmers who live within urban communities. Certainly, since regional government has been enacted in this province there are a great many municipalities in the Niagara region and elsewhere which have a large urban core and a lot of rural land surrounding that urban core. If those municipalities such as St. Catharines pass bylaws under section 354, which gives them the power over fences, 119,000 out of 120,000 of their population are urban and it applies very well to those, but then the farmers in the rural area are deprived of the rights which are given to other farmers under the Line Fences Act.

So we feel that within those municipalities, in respect of lands in those municipalities which are used by the owner for agricultural purposes, the Line Fences Act should apply, and that, of course, is our intention in moving this amendment. We think the farmer should have the same rights when he is farming within an urban municipality as has another farmer in a rural municipality, and this bill now prevents that from happening.

Mr. Rotenberg: Mr. Chairman, I will not support the amendment. I would point out that for probably the past 186 years the act has been written differently from now, in that municipalities -- certainly since I can find out; since about 1854, anyway -- have had the right, in effect, to use that section of the Municipal Act and it hasn’t caused too much concern.

I would also point out that under the present Line Fences Act, as will be shortly replaced, municipalities have to opt into the act. Most municipalities do, because section 1(3) of the present act reads: “This act applies” -- and this is my favourite Latin expression -- “mutatis mutandis to unoccupied land as well as to occupied land in any local municipality the council of which has passed a bylaw declaring this act so applies.”

But in what is considered to be unoccupied land -- forgetting the section in the Municipal Act -- the whole act didn’t apply unless the council passed a bylaw. Occupied land is defined as “does not include so much of a lot as is unenclosed, although part of the lot is enclosed.” So in effect, in the present act as is now the law of the province of Ontario, unless a municipality specifically passed a bylaw to opt in, the Line Fences Act did not apply on land that had not previously been fenced.

We have sort of plugged all that up and taken out the distinction between occupied land and unoccupied land.

I would also point out the amendment really is, with respect, not too well drawn, because agricultural purposes can or cannot cover a multitude of things. For instance, is a garden plot in someone’s backyard agricultural purposes? I really don’t think the amendment as drawn is very clear.

The main point about this is this: We have put section 24 into the act in effect to flag the fact that all this time and up until this time there has been the right of the municipality, be it rural or urban, to pass a bylaw under section 354(1)(21) of the Municipal Act. All these years they have had that right. It was never specifically mentioned in the old Line Fences Act, but all municipalities historically since 1854 have had that right. To the best of my knowledge, and to the best of our staff’s knowledge, that right has been exercised only by one municipality in Ontario and that is the city of Toronto.

I recognize that there could be an abuse by some municipalities in exercising section 354(1)(21) and in effect passing a bylaw that doesn’t accomplish what we all want to be accomplished, especially in rural areas. But the place to fix that up, with respect, is not in the Line Fences Act; the place to fix that up is in the section in the Municipal Act that gives the municipalities this power. We have indicated already that in the next review of the Municipal Act, which should be around this fall, we will be reviewing that section with the possibility of changing it, abandoning it or possibly just grand- fathering any municipalities in there.

I would point out to the members that we have indicated to the OFA and to ROMA that we are going to be doing this review, and they seem to want to be involved in the review. I would suggest that if, since at least 1854, this section hasn’t caused too much trouble, it won’t cause too much trouble for the next few months, and rather than put in an amendment which may or may not solve the problem, I would ask for the support of the House not to pass this amendment at this time but to wait until we review section 354(1)(21) and do it in the proper manner.

Mr. Epp: Obviously we won’t support this amendment for two reasons. First of all, I agree with the member for Wilson Heights that it is very vague. It states, “but the provisions do apply in respect of land in such municipalities that is used for agricultural purposes.” Any yard could be fenced and could include within its boundaries some small plots that are used for agricultural purposes. So the definition here is not very clear and I think in the long run would cause more problems than it is trying to solve.

I don’t agree with the good intentions of the member for Welland-Thorold that he is trying to solve a problem here, and there is a small problem, but I think in the final analysis we are going to raise more questions and create more doubts and more problems than we are going to solve by this. We obviously will oppose the amendment.

Mr. Isaacs: Mr. Chairman, I am not at all clear whether the parliamentary assistant is indicating a commitment to ensure an amendment to the Municipal Act in the near future to deal with this matter, but I get the impression it is not a commitment to introduce such an amendment, it is only a commitment to consider it. I am not at all sure that is sufficient.

As I indicated in my remarks on second reading, there is an increased number of large municipalities that include both fully urban and fully rural sections. Those occur within the 10 regional municipalities we now have in this province, and may indeed occur as regional restructuring in some form crawls across this province.

But now that the problem has been brought to the attention of municipalities and now that it has been considered by the Rural Ontario Municipal Association, and given that ROMA is supporting the amendment that has been introduced by my colleague, the member for Welland-Thorold, I suggest to the parliamentary assistant that even if things have been okay for the past 100 years, they may not be okay in the future. Even a period of four or five months may lead to difficulties in some municipalities or in a limited number of cases. That would be of concern to me.

I also do not understand how the parliamentary assistant is saying that an amendment to the Municipal Act can handle this problem, because what the amendment that my colleague has introduced is attempting to do is say that the Line Fences Act shall apply in agricultural areas whatever the actions of the municipal council may be. It is, after all, an act that is of most concern to agricultural land-users.

But if the Municipal Act is amended to say that a municipality can opt out of the Line Fences Act those parts of the municipality that are urban, but not opt out those parts that are rural, then surely that is going to be even more cumbersome, in terms of wording and in terms of the way it specifies the opting-in, opting-out process, than is an amendment in this act.

I suggest to the parliamentary assistant that we need at least some reference in this act to the fact that provisions for line fences and fence-viewers shall apply in agricultural areas regardless of what the council of a primarily urban municipality might decide to do. That is why my colleague has introduced this amendment.

Mr. Chairman: All those in favour of Mr. Swart’s amendment will please say “aye.”

All those opposed will please say “nay.”

In my opinion the nays have it.

Motion negatived.

Section 24 agreed to.

Section 25 agreed to.

On section 26:

Mr. Chairman: Mr. Swart moves that section 26 of the bill be deleted and the following substituted therefor: “The provisions of this act apply with necessary modifications to land situated in territory without municipal organization and for this purpose the Minister of Northern Affairs shall exercise the powers and perform the duties and functions conferred by this act upon municipalities and municipal officials in territory without municipal organization.”

[10:15]

Mr. Swart: Mr. Chairman, we consider this as perhaps the most important amendment that has been put to this bill because this means this act will apply to northern Ontario -- to farm land in unorganized parts of this province. The bill as it is written, of course, will empower the Lieutenant Governor in Council to make regulations “to provide for determining how the costs of line fences marking the boundary between lands situate in territory without municipal organization shall be apportioned, and for providing for the manner in which any amount so apportioned shall be recoverable.”

That leaves it entirely wide open. The Lieutenant Governor in Council and the government may do whatever they like; they need not follow any of the provisions of this act whatsoever. We suggest that the farmers in the unorganized districts in northern Ontario should have the same rights as the farmers in southern Ontario. They have a lot of disadvantages that the farmers here don’t have. This amendment would provide that the Minister of Northern Affairs would exercise the powers, duties and functions which would normally be conferred on the municipalities in organized territories.

It is my understanding that the Minister of Northern Affairs has more offices throughout the north than the Minister of Intergovernmental Affairs. He now has responsibility for everything that takes place in northern Ontario and we have designated that minister under this amendment because we believe he would be the most appropriate. If the government felt that the Minister of Intergovernmental Affairs should do it, I think we would be willing to accept that recommendation. But it does appear that that is the appropriate minister to administer this act.

The issue before us in this amendment is just simply is there going to be a Line Fences Act which applies to northern Ontario. If this amendment passes, there will be; if this amendment is defeated, there won’t be. It’s that simple. We think the farmers in northern Ontario should have that right.

Mr. Rotenberg: We do agree in principle that the north should be covered under the act. The north has not been covered under the act -- that is the unorganized territories, which are mostly in the north, haven’t been covered under the act since 1793 when this act was first brought forward. Up until now, only organized municipalities were covered. We do believe the entire province should be covered and that unorganized territories should be brought under the act.

The problem though is what is exactly the best method to do this. Simply by designating a minister and having all the terms of the act apply does cause some problems. There is the matter of who sends out the notices, the matter of awards and so on. There are a number of different ways these could be done. Our ministry is studying this matter and, rather than leave this out of the act, since we weren’t quite sure how to do it, we put section 26 in the act to give a firm indication to this House and to the people in unorganized territories that we do intend to bring them under the act.

Our preliminary feeling is that probably the Minister of Intergovernmental Affairs would be the best one to handle it instead of the Minister of Northern Affairs, but we haven’t done all the studies or considered all the problems which would be brought forward by having either ministry handle this.

Therefore, I would ask the House not to accept this amendment, on the understanding that, yes, we are bringing unorganized territories under the act. We have placed section 26 in the act to indicate that this is our intention, and as soon as we are able to complete the studies as to the best way to do it -- and there are some problems in just putting them holus bolus under the act with a ministry -- we will be bringing forward regulations in order to bring the north completely under the act. It is a major step forward for the unorganized territories, because until now they haven’t been included. We do intend to bring them in.

Mr. Epp: I agree with the parliamentary assistant to the minister that this is a major step forward. We believe this Legislature can take that major step at this time, and, therefore, this amendment should be supported. We believe these unorganized areas should be under a municipal structure first of all and, secondly, should be subject to this act. As a result, we will support the amendment.

Mr. Swart: I rise to welcome the support from the party on our right for this amendment. Although the member for Algoma (Mr. Wildman) is not with us this evening this was in fact his amendment, and is something about which he feels very strongly. I would be negligent if I did not put on the record that the member for Algoma had initiated an amendment very similar to this when the first bill was brought in and now is very supportive of this amendment. I am just delighted that it appears that they are finally going to get a Line Fences Act in northern Ontario.

Mr. Rotenberg: Mr. Chairman, as I indicated we will not support the amendment. The member for Welland-Thorold indicated that if the preference was Minister of Intergovernmental Affairs rather than Minister of Northern Affairs, he would change his amendment. In case it does carry, I would ask him to change that, even though we will not support it either way.

Mr. Swart: I will accept that change.

Mr. Nixon: That’s very gracious of you.

Mr. Chairman: Would the member for Welland-Thorold put the change on the record?

Hon. Mr. Grossman: My constituents are concerned about that.

Mr. Swart: Yes, Mr. Chairman. In view of the agreement reached between myself and the parliamentary assistant from Wilson Heights that he will support our amendment if we make that change, I will change the amendment to read that section 26 of the bill be deleted and the following substituted therefor: “The provisions of this act shall apply with necessary modifications to lands situated in territory without municipal organization and for this purpose the Minister of Intergovernmental Affairs shall exercise the powers and perform the duties and functions conferred by this act upon municipalities and municipal officials in territory without municipal organization.”

Mr. Rotenberg: I know the member for Welland-Thorold is being facetious. Just so the record will be clear, I did not make any agreement to support the amendment he has now put.

Mr. Chairman: Shall the amendment carry?

All those in favour will please say “aye.”

All those opposed will please say “nay.”

In my opinion, the ayes have it.

Amendment stacked.

Mr. T. P. Reid: You almost fooled him.

Sections 27 to 30, inclusive, agreed to.

The committee divided on Mr. Swart’s amendment to section 12 of the bill, which was negatived on the following vote:

Ayes 38; nays 40.

The committee divided on Mr. Isaacs’ amendment to the amendment to section 23, which was negatived on the following vote:

Ayes 19; nays 59.

Mr. Chairman: Shall Mr. Epp’s motion to amend section 23 carry?

Motion agreed to.

Section 23, as amended, agreed to.

The committee divided on Mr. Swan’s amendment to section 26, which was negatived on the same vote.

Section 26, as amended, agreed to.

Bill 17, as amended, reported.

On motion by Hon. Mr. Welch, the committee of the whole House reported one bill with amendment.

The House adjourned at 10:35 p.m.