STAFF REPORT

January 24, 2000

To: Administration Committee

From: City Solicitor and Commissioner of Works and Emergency Services

Subject: Completion of Statutory Project: Easement Statute Law Amendment Act, 1990

Purpose:

To report on the completion, within required statutory deadlines, of the Project resulting from the Easement Statute Law Amendment Act, 1990.

Financial Implications and Impact Statement:

Future work to maintain the City's easement database, conduct timely title searches and effect registration of Notices of Claim will be accomplished within existing staff levels.

Recommendations:

It is recommended that the authority contained in Recommendation No. 6 of Clause No. 45 of Report No. 17 of the Executive Committee adopted by the Council of the former Corporation of the City of Toronto at its meeting held on August 30, 1993, be rescinded retroactively to its date of adoption.

Background:

The investigation of titles provisions of the Registry Act establishes a 40 year title search period and provides, essentially, that an owner need not demonstrate entitlement to his/her interest in land through a good and sufficient chain of title during a period greater than 40 years prior to the date of dealing. These provisions have, particularly in recent times, been strictly interpreted by the Courts. Claims for interests in land registered prior to the 40 year period and not further preserved during the 40 year period by registration of a notice of claim no longer affects/binds the property in question. The term "claim" is defined broadly in the Registry Act and includes easements held by a municipality over private lands. Prior to certain amendments to the Registry Act in 1981 claims, such as easements, could be preserved for a further 40 years by being acknowledged or referred to or contained in another registered instrument or notice on title. As of August 1, 1981, however, this regime was retroactively changed by legislation, such that all claims are extinguished unless a notice of claim is registered within 40 years of the initial creation of the claim.

Municipalities launched objections to the 1981 statutory amendments as these amendments meant the possible loss of many municipal easements over private lands. In response to those objections, the Easement Statute Law Amendment Act, 1990 was passed which amended the Registry Act, the Municipal Act and the Ministry of Government Services Act. Essentially, the legislation preserved certain municipal easements until December 31, 1999 provided such easements already legally "existed" on July 31, 1981, the effective date of the problematic amendments to the Registry Act. The Act did not preserve all municipal easements, but rather only those easements which fall within the definition of a "public utility easement". A "public utility easement" is defined as an easement which provides or facilitates the transmission of various services, as more particularly listed in the Act (which includes, but is not limited to: sewers, water and transit). As such, all municipalities had until the deadline date of December 31, 1999 to register all possible notices of claim to preserve those public utility easements which existed on July 31, 1981, and which would otherwise have expired.

Comments:

Accordingly, certain of the former municipalities comprising the new City of Toronto undertook programs of researching records to determine the existence of such "easements", searching titles in the Registry Offices to all of the properties in question, and conducting the legal work necessary to register the notices of claim to protect the municipalities' easements falling within the public utilities category referred to in the statute. Subsequent to amalgamation, the staff of the new City continued the work undertaken by certain of the former municipalities and commenced work on behalf of those municipalities where work had not yet begun. The work for the Easement Statute Law Amendment Act Notices of Claim Project involved the following:

(a) researching and locating 1102 easements created prior to December 31, 1960 by the former municipalities;

(b) searching titles to approximately 4,500 properties; and, ultimately,

(c) registering 664 Notices of Claim affecting 2,422 properties.

The difference in the number of properties is due to the fact that some of the easements are in Land Titles, some easements had already expired and some easements had never been registered in the first place. Note that the Act contained no provisions to validate or extend an invalid or expired easement claim and, accordingly, municipalities may well have lost entitlement to those type of municipal easements.

At the same time, the opportunity was seized to map and index the existing easements, and to create and/or update the City's computerized easement database.

We are pleased to report that all of the necessary work on behalf of the new City of Toronto, representing all of the former municipalities, was completed prior to the statutory deadline of December 31, 1999.

For the future, we will need to continue to investigate and search title for approximately 150 easements a year as the 40 year period preceding each particular year approaches expiry (1961, 1962, etc …….) and register Notices of Claim for those which require them. The database which has now been created will be utilized to locate each year those further easements requiring documentation and registration of Notices of Claim prior to the expiry of the relevant statutory period. All of this future work will be done by existing Works and Emergency Services and Legal staff.

One of the former municipalities had included, as a component of its report authorizing staff to undertake the project work in relation to this matter, a provision requiring that, in addition to registering the Notices of Claim on title to the subject property, a copy also be sent by registered mail to the property address addressed to "The owner". Since this was not a practice followed by any of the former municipalities except the one (former City of Toronto), staff in the amalgamated City has taken a consistent approach across the new City, and have not taken the additional step of mailing copies to the property address. Accordingly, the original authority on that point should be retroactively rescinded.

Conclusions:

This report is submitted to inform Council of the successful completion of this project within statutory deadlines.

Contact:

M.A. Fischer Wally Kowalenko

Director, Real Estate Law City Surveyor

Phone: 392-8054 Phone: 392-7664

Fax: 397-5624 Fax: 392-0081

Email: mfischer@toronto.ca Email: wkowalenko@toronto.ca

H.W.O. Doyle Barry Gutteridge Tom Denes

City Solicitor Commissioner of Works Executive Director

and Emergency Services Technical Services

Works and Emergency Services

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