In Ontario, the primary production of food and fibre is tied to farmland. Ontario’s level of food production is tied to the capacity of farm property and the restrictions imposed on farming activities. A number of provincial statutes, policies and programs effect how farmers carry out their day-to-day day activities.
In a March 2015 survey, OFA members identified farmland rental conditions imposed by landlords on farmland they rent. Approximately 75% of OFA members surveyed said that if they owned their currently rented farmland, they would make additional productivity improvement investments to the farmland. The need for an investment in tile drainage was frequently noted.
OFA continues to support and assist OFA members dealing with farm property issues including, but not limited to, abandoned railway rights-of-way, trespassing, line fences, drainage, and on-farm oil & gas wells.
Among the sub issues OFA has chosen to address here are;
- Abandoned Railway Rights-of-Way
- Private Railway Crossings and Grade Crossing Regulations
- Line Fences
- Merged Property titles
Abandoned Railway Rights-of-Way
Over time, Canadian railways have chosen to end rail transportation on portions of their network of rail lines. In many cases, once the decision has been made to end use of a rail line, the railway company then elects to abandon the rail line. In some cases, the tracks and adjoining lands making up a rail line are sold to another railway company. When the tracks and subsequent lands go unwanted, the tracks are removed, and the lands sold.
For farmers, fencing of these former or abandoned railway rights-of-way is a critical issue. In addition, if these lands are then used as a recreational trail, that incurs added impacts on day-to-day farming activities.
Ontario’s Line Fences Act assigns special fencing obligations on non-abutting property owners who acquire abandoned railway rights-of-way that pass-through farms. The non-abutting owners (municipalities, conservation authorities, etc.) of these former rail lines are 100% responsible for the costs associated with building and maintaining the fences where the adjoining lands are farmlands.
Private Railway Crossings and Grade Crossing Regulations
Transport Canada regulates all at-grade or level crossings over railway tracks. Crossings are either public crossings – crossings on public roads or private crossings – crossings on private property, such as farmland.
Private crossings are those where there is no public use of the crossing, and the same person, business, etc. owns the land on both sides of the tracks. Numerous farm properties have an active railway line passing through the farm, and a private level crossing over the rail line that serves as the farmers only means of access to fields on the opposite side of the tracks.
In March 2019, Transport Canada amended its Grade Crossing Regulations, which apply to both private crossings as well as to public crossings, resulting in new requirements to enhance safety related to sightlines and grade levels. The “in force” date for these requirements is set for November 28, 2021. However, on June 18, 2021, Transport Canada proposed additional amendments to the Grade Crossing Regulations which would establish new compliance deadlines to meet the requirements of the Regulations based on the various levels of risks posed by grade crossings. This includes:
- a one-year extension for existing public grade crossings which present a higher risk;
- a three-year extension for all remaining public and all private grade crossings; and
- an exclusion from the construction and maintenance requirements for very low-risk grade crossings (such as field-to-field crossings with minimal train traffic).
Transport Canada is proposing the following amendments for private crossings:
- Permanently excluding 30% of private crossings from the requirements (an estimated 3420 crossings)
- Providing a three-year extension for an additional 70% of private crossings.
OFA members can use Transport Canada’s Grade Crossings Database to determine whether their crossing can be defined as ‘low risk’ and therefore exempt from the regulations or ‘Other Grade Crossing’ subject to the three-year extension. The database can be accessed here: https://open.canada.ca/data/en/dataset/d0f54727-6c0b-4e5a-aa04-ea1463cf9f4c
Three categories have been identified by Transport Canada:
High-Priority Grade Crossings
Public Grade Crossings with average annual daily railway movements of 10 or more and a railway design speed of 97km/h or more (subject to one year extension of the deadline).
Low Risk Crossings
Crossings meeting all the criteria in any one of the following three categories would be considered low risk (as long as they continue to satisfy the criteria). These would be exempted from compliance with the regulations:
- Public grade crossings where the average annual daily railway movements are less than 3, the railway design speed is 17 km/h (10 mph) or less, no more than one track crosses the grade crossing, the storage distance is 30 metres or more, whistling is required or permitted when railway equipment is approaching the grade crossing, and the cross-product is less than 2 000;
- Private grade crossings where the railwXXcfay design speed is 17 km/h (10 mph) or less, no more than two tracks cross the grade crossing, and the cross-product (obtained by multiplying the average annual daily train movements by the average annual daily vehicular traffic) is less than 100; or
- Private grade crossings where the railway design speed is 41 km/h (25 mph) or less for freight trains and 49 km/h (30 mph) or less for passenger trains, no more than one track crosses the grade crossing, the storage distance (the shortest distance between the rail line and the nearest intersection) is 30 metres or more, the cross-product is less than 100, and there is no sidewalk.
Other grade crossings
Grade crossings which are not high-priority, and which do not fall under any of the three above categories of low-risk crossings. This category currently includes an estimated 17,783 crossings and would be subject to a three-year extension of the deadline.
After the November 28, 2024 deadline has passed, for any crossings still not in compliance, Transport Canada suggests that they would take a graduated and proportionate enforcement approach in accordance with the Rail Safety Oversight Policy to educate, deter, and, when necessary, penalize those who contravene the Railway Safety Act or its associated regulations. This could range from a letter of warning to an administrative monetary penalty of up to $250,000.
Transport Canada has posted Grade Crossing Information on its website at: https://tc.canada.ca/en/rail-transportation/grade-crossings/grade-crossings-regulations-what-you-need-know.
Transport Canada also has some private crossing-specific information available at: https://tc.canada.ca/en/rail-transportation/grade-crossings/private-grade-crossings.
For more information regarding Grade Crossing Regulations, visit https://laws-lois.justice.gc.ca/PDF/SOR-2014-275.pdf.
OFA continues monitor this process and will inform members accordingly as more information becomes available.
Line fences mark the boundary between abutting properties. While section 3 of the Line Fences Act (the Act) gives landowners the right to construct and maintain line fences, it does not force landowners to build fences to mark the boundaries of their property.
The Line Fences Act never makes reference to livestock. Other statutes, such as the Municipal Act and the Pounds Act, as well as common law, impose a duty on farmers with livestock to ensure their animals do not stray and damage neighbouring property, including crops.
When adjoining landowners cannot agree how to share the construction, repair or maintenance of their line fence, and one landowner still wants a fence built or repaired, the one needing the fence can turn to the dispute resolution process in the Act. One party begins the process by contacting their municipal clerk, asking for the Fence-Viewers.
For more information, read OFA’s Line Fences and the Law in Ontario fact sheet.
For additional information on the Line Fences Act, read the Ministry of Municipal Affairs and Housing’s Guide to the Line Fences Act.
Merged Property Titles
Ontario has two property registration systems, Land Titles and Land Registry. Parts of the province, particularly the north, have always been under the Land Titles system, while much of the province was under the older Land Registry system.
An unfortunate feature of lands under the Land Registry system is that the titles of abutting properties held in exactly the same name or names are merged. Despite this merger, the owner continued to receive separate tax notices, under separate roll numbers. Only when it came time to sell one or both parcels would it come to light that the titles were merged. Not every farmer, who bought the farm next door, ended up with the titles merged, competent legal advice would alert the buyer to the means to avoid merged titles.
For farmers with merged titles, the process to “unmerge” them can be time-consuming, and costly. In some instances, their efforts are unsuccessful, particularly if the municipality has established a minimum farm lot size in its Official Plan or Zoning By-laws.
OFA has called on the Ontario Government to change the Land Registry System under the Planning Act so that the practice of automatic merging is discontinued.
In 2019, the Honourable Doug Downey (MPP for Barrie—Springwater—Oro-Medonte) introduced Bill 88 to amend the Planning Act. His Bill would allow the original lot fabric to be kept in the case of properties that merged due to the death of an abutting joint owner. Bill 88 was referred to the Standing Committee on Finance and Economic Affairs but that is where it sits.
OFA encourages all Ontario farmers to write the Clerk of the Standing Committee on Finance and Economic Affairs to request that the Committee hold public hearings on Bill 88 as soon as possible, so that Bill 88 can proceed to Third Reading and is hopefully passed into law. Letters can be directed to:
Julia Douglas Clerk – Standing Committee on Finance and Economic Affairs
99 Wellesley Street West Room 1405 Queen’s Park Toronto, Ontario M7A 1A2
OFA would appreciate being copied on any letters sent to the Committee so OFA can reference them in our further advocacy efforts on this issue.