Objections and the changing nature of the heritage conservation field
Objections to designation under Section 29, Part IV (individual property designation) of the Ontario Heritage Act are not new. The Act outlines a specific process by which objections can be made (section 29(5) and (11)).
In Tremblay v. Lakeshore (Town), 2003, the Ontario Superior Court specifically stated that decisions to designate are discretionary and must be consistent with applicable law. This is made plain at the outset of the decision:
The decision to designate a property under the Ontario Heritage Act is discretionary. However the discretion must be exercised within the boundaries imposed in the statute, the principles of the rule of law, the principles of administrative law, the fundamental values of Canadian society and the principles of the Canadian Charter of Rights and Freedoms. (Tremblay v. Lakeshore (Town), 2003.)
The decision also determined that designation against an owner’s wishes is permitted:
[23] Requiring the consent of the owner is not consistent with an overall reading of the Act or its purpose. Indeed, the Act contemplates notice to the owner, possible objections, and a hearing process.
[24] The object of the Act is the conservation and protection of the heritage of Ontario. This may interfere with individual property rights. Accordingly, in requiring the consent of the owner as a pre-condition to designation, the Town placed an unreasonable obstacle on its own discretionary powers thereby fettering its discretion and aborting the process intended by the Act.
The ruling references the 1982 Supreme Court Decision upholding the ability of a municipality to designate properties under the Ontario Heritage Act (St. Peter's Evangelical Lutheran Church (Trustees of) v. City of Ottawa, 1982).
For many of us in the heritage conservation field, the now 20-year-old Lakeshore decision is also not new. It has been cited in subsequent decisions of the Conservation Review Board and the Ontario Land Tribunal. Historically, it was specifically referenced in the Government of Ontario’s 2006 Ontario Heritage Toolkit guide on designating properties. The case was even discussed in this OHA+M blog (Schneider, 2015).
With the current legislated requirement for municipalities to decide how they will address section 27 listed properties on their Heritage Registers by 1 January 2027, many municipalities have vigorously moved forward with new property designations. Inevitably, objections have been and will continue to be made.
Note that the language for objections in section 29(5) and (11) is arguably vague, stating only that the objection should provide “the reason for the objection and all relevant facts” and “the reasons in support of the objection, accompanied by the fee charged by the Tribunal.” In practice, this has typically meant objections must relate to either: 1) an error in process or law, or 2) concerns with the identified cultural heritage value or interest and/or list of heritage attributes. This article will focus on what may be an emerging new kind of objection — called pseudo-legal objections — and consider a recent case in the City of Kingston.
What are pseudo-legal claims?
Figure 1: Pseudo-legal notice from Belfast. Note: From Wikimedia Commons, by Albert Bridge, 2013. CC BY-SA 2.0
One must first understand the nature and rise of pseudo-legal claims. The earliest of such claims appears to have originated in the late 1950s, and Canadian examples seem to be based primarily on early American examples although other Commonwealth precedents have been identified (Netolitzky, 2018). Nevertheless, the concept was not well known until 2012, when Associate Chief Justice Rooke of the Court of Queen’s Bench of Alberta issued arguably the landmark decision concerning these types of claims: Meads v. Meads (2012). [1] This 736-paragraph decision was one of the first to comprehensively consider “Organized Pseudolegal Commercial Argument” (OPCA) appeals, which the court termed essentially a type of vexatious appeal (Netolitzky, 2019).
As the decision states:
[1] … These persons employ a collection of techniques and arguments promoted and sold by ‘gurus’ (as hereafter defined) to disrupt court operations and to attempt to frustrate the legal rights of governments, corporations, and individuals.
[2] Over a decade of reported cases have proven that the individual concepts advanced by OPCA litigants are invalid. What remains is to categorize these schemes and concepts, identify global defects to simplify future response to variations of identified and invalid OPCA themes, and develop court procedures and sanctions for persons who adopt and advance these vexatious litigation strategies.
Further, the decision notes:
[4] OPCA litigants do not express any stereotypic beliefs other than a general rejection of court and state authority; nor do they fall into any common social or professional association. Arguments and claims of this nature emerge in all kinds of legal proceedings and all levels of Courts and tribunals. This group is unified by:
- a characteristic set of strategies (somewhat different by group) that they employ,
- specific but irrelevant formalities and language which they appear to believe are (or portray as) significant, and
- the commercial sources from which their ideas and materials originate.
This category of litigant shares one other critical characteristic: they will only honour state, regulatory, contract, family, fiduciary, equitable, and criminal obligations if they feel like it. And typically, they don’t.
While much of the decision focuses on the overall trends of OPCA litigants, Justice Rooke did acknowledge that his list of precedents was inherently incomplete, writing that:
[70] These Reasons in many instances identify reported caselaw that comments on OPCA litigants, OPCA gurus, and their misconduct. It should be understood that the reported caselaw is the proverbial tip of the iceberg. The vast majority of encounters between this Court and OPCA litigants are not reported. These litigants and their schemes have been encountered in almost all areas of law. They appear in chambers, in criminal proceedings, initiate civil litigation based on illusionary OPCA rights, attempt to evade court and state authority with procedural and defence-based schemes, and interfere with unrelated matters.
The decision also made clear that there was no discernible pattern to litigants of this kind:
[159] There are no stereotypic OPCA litigants. They may be of any age or gender. Some are affluent, while others are not. Canadian caselaw reports OPCA concepts advanced by professionals, “blue collar” workers, business persons, and retired individuals. Some travel in groups, while others appear to operate by themselves.
This point is illustrated by a recent case from British Columbia where a lawyer resigned for advancing an OPCA position during a property dispute (Lindsay, 2024).
What are some of the hallmarks of pseudo-legal claims?
There are commonalities in the arguments put forward by pseudo-legal adherents. These include:
- No legal obligation can be enforced upon an individual without his or her agreement or consent;
- That every person has two distinct legal aspects, or can be split into two legal entities; and,
- That an OPCA litigant can unilaterally bind the state, a state actor, a court, or other persons with a ‘foisted’ agreement (Meads, para. 305). [2]
For those of us in the heritage field, these are particularly germane.
The idea that “everything is contract” stems from the mistaken belief that individuals may reject government authority much like one would reject a contract offer (Meads, para. 379; Netolitzky, 2018). Further, that individuals’ “consent is required before an obligation can be enforced” (Meads, para. 379). This is often found in exhortations or submissions that litigants’ express permission or consent is required for a particular action.
The idea that a person can be two distinct legal entities is a little more challenging to grasp. The Meads decision offers some helpful guidance in this regard.
[417] A strange but common OPCA concept is that an individual can somehow exist in two separate but related states. This confusing concept is expressed in many different ways. The 'physical person' is one aspect of the duality, the other is a non-corporeal aspect that has many names, such as a 'strawman', a 'corporation', a 'corporate entity', a 'corporate fiction', a 'dead corporation', a 'dead person’, an 'estate', a 'legal person', a 'legal fiction', an 'artificial entity', a 'procedural phantom', 'abandoned paper work', a 'slave name' or 'slave person', or a 'juristic person'.
[418] Many OPCA nomenclature schemes relate to this duality. For example, the 'lower case' vs. 'upper case' name pairs indicates the 'physical person' and 'non-corporeal aspect', respectively. When '::Dennis-Larry: Meads::' says he acts 'on behalf of DENNIS LARRY MEADS (juristic person)', he appears to indicate he believes he has two separate aspects, and that the man in the courtroom ('::Dennis-Larry: Meads::') is representing his other half ('DENNIS LARRY MEADS (juristic person)'). Other times OPCA litigants say they are 'agents', 'trustees', 'owners', 'representatives' or 'secured party' for their other aspect.
The decision also identifies some common language patterns to help individuals trying to ascertain if a submission is an OPCA claim.
The concept of a foisted agreement refers to attempts by litigants to try to force specific obligations on other persons or entities such as the courts, court officers, and other individuals. While these are often positioned as contracts, the decision notes that contract law prohibits the enforcement of unilateral agreements (Meads, paras. 458-459). However, this does not prevent OPCA litigants from trying to claim that the failure to refute or refuse results in a specific ‘obligation’, often accompanied by a ‘fee schedule’ (Meads, para. 479). The foisted agreement has also been used to try to claim trademark of litigants’ names (Meads, para. 494).
Lastly, another defining feature of such litigation is the misuse or misquoting of specific legislation. As Meads notes, many documents submitted in support of such litigation contain obsolete, foreign, or other irrelevant legislation, which can include legislation from the United States, the Bill of Rights, the Magna Carta, and various ‘Oaths’ legislation (para. 228).
Case Study: Kingston, Ontario
This brings us to the case from Kingston, Ontario. [3] In November 2023, the City of Kingston brought forward seventeen properties recommended for designation to the Kingston Heritage Properties Committee. The owners of one property submitted a detailed letter of objection outlining the reasons for their objection. This letter is a matter of public record and can be found on the City’s website. [4]
Interestingly, this material bears many of the hallmarks of pseudo-legal arguments, beginning with two “NOTICE TO THE CITY OF KINGSTON” documents stating that the owners did not grant permission for the City to “designate, zone, modify, or change in any way the current position of my property without my express written consent.”
These “NOTICES” prefaced a letter that began with the statement: “We have our inalienable right to life, limb, liberty, religion, freedom of private property and freedom of contract.” This is followed by selected quotes from several pieces of legislation from across Canada, including the British North America Act, the Legislation Act (Ontario), the Property and Civil Rights Act (Ontario) and the Municipal Act (Ontario). Following this discussion, the owners reiterate that “NO PERMISSION IS GIVEN to any designation or registry of our property.” This stance is repeated at several points throughout the letter in relation to arguments around context and safety/privacy including a concluding statement that “WE DO NOT PERMIT inspections, site visits, or by-law enforcement on our property.”
This letter of objection reflects some of the pseudo-beliefs identified in the discussion above including that no legal obligation can be enforced without an individual agreement (particularly with the use of “NOTICES”) as well the misuse/misquoting of Canadian law. Ultimately, these efforts were for naught, as the City of Kingston designated the property in question under the Ontario Heritage Act on 2 April 2024. The designation has now been appealed to the Ontario Land Tribunal (OLT), and the upcoming decision (if the case reaches that stage) may give some further insights.
Conclusion
As Justice Rooke notes, such hallmarks of pseudo-legal appeals “… do not prove a claim or action is invalid, or that a litigant is vexatious” (Meads, 2012, para. 202). In some cases, there may be valid reasons for concern and reasons for objections. It could be as simple as a property owner not knowing how to properly appeal a designation – particularly considering the vague wording of the Act – and turning to readily available but not necessarily reliable information (such as on the internet or discussion forums) rather than legal counsel or specialized professionals. (This could be due to something as simple as the cost.)
In the Kingston case, while the City of Kingston was well within its rights to designate the property without the owners’ consent, the question that remains is how the designation will be enforced. Assuming the designation is upheld by the OLT, the City will need to work with clearly dissatisfied property owners who have openly questioned the ability of the municipality to designate the property and who have stated they do not recognize its authority.
Such issues should not preclude municipalities from proceeding in such cases, but a municipality should consider the practical considerations of future enforcement. Ultimately, these cases merit caution, and as Justice Rooke wrote, if such tell-tale signs of OPCA appeals do appear to be present, a closer review is warranted. For those of us in the field, if such hallmarks exist, engaging legal counsel to examine the materials is recommended.
For property owners considering such an OPCA-style appeal, the case law is clear: just don’t!
Notes
Note 1: As Netolitzky (2018) writes “as of April 2018, [the decision] has been cited in 163 Canadian court and tribunal decisions and in other Commonwealth jurisdictions including Australia, New Zealand, Scotland, the Republic of Ireland, Northern Ireland, and Jersey.”
Note 2: Netolitzky (2019), in his thorough and helpful examination of the decision, identifies five core aspects of OPCA categories or schemes, including their efforts to 1. defeat or restrict court authority (“Magic Hats”); 2. consider everything is a contract; 3. stipulate silence means consent; 4. involve the “Strawman” duality; and 5. provide “money for nothing,” chiefly “Accept for Value” or “A4V.”
Note 3: Details on the case can be found on the City of Kingston’s website at https://events.cityofkingston.ca/default/Detail/2023-11-15-0930-Kingston-Heritage-Properties-Committee2.
Note 4: While the City of Kingston did not omit the specific property owner details from the submission, and the owners were publicly identified in an article in a local paper, this article will not reference these details.
Acknowledgements
Thank you to the many people who provided me with helpful comments and reviews including Dan Schneider, Ryan Leary, Denise Horne, and Virginia Letourneau.
References
Bridge, A. (2013, October). "Sovereign Citizen" notice, Belfast [Photograph]. Wikimedia Commons. https://commons.wikimedia.org/w/index.php?curid=74546475.
City of Kingston. (n.d.) Kingston Heritage Properties Committee, November 15, 2023. https://events.cityofkingston.ca/default/Detail/2023-11-15-0930-Kingston-Heritage-Properties-Committee2.
Lindsay, B. (2024, January 30). Vancouver lawyer resigns licence after filing 'frivolous and vexatious' lawsuit against neighbour. CBC News. https://www.cbc.ca/news/canada/british-columbia/bc-lawyer-pseudolegal-lawsuit-licence-resigned-1.7098461.
Meads v. Meads, 2012. ABQB 571 (CanLII), https://canlii.ca/t/fsvjq.
Netolitzky, D. (2018, May 3). A rebellion of furious paper: Pseudolaw as a revolutionary legal system [Paper presentation]. Centre d’expertise et de formation sur les intégrismes religieux et la radicalisation (CEFIR) symposium: “Sovereign Citizens in Canada,” Montreal. https://ssrn.com/abstract=3177484.
Netolitzky, D. (2019). After the hammer: Six years of “Meads v. Meads.” Alberta Law Review, 56(4), 1167–1207. https://doi.org/10.29173/alr2548.
Ontario Heritage Act, RSO 1990, c O.18. https://canlii.ca/t/569w5.
Schneider, D. (2015, November 6). The Ontario Heritage Act (OHA): What the courts have to say (part two) … or, getting pushy about designation. University of Waterloo Heritage Resources Centre. https://uwaterloo.ca/heritage-resources-centre/blog/ontario-heritage-act-oha-what-courts-have-say-part-two-or.
St. Peter's Evangelical Lutheran Church (Trustees of) v. City of Ottawa, 1982 CanLII 60 (SCC), [1982] 2 S.C.R. 616. https://canlii.ca/t/1txgm.
Tremblay v. Lakeshore (Town), 2003. CanLII 6354 (ON SCDC).