IN UPHOLDING a lower court's Line Fences Act decision to the detriment of East Luther Grand Valley Township, Ontario's highest court has effectively placed municipalities on notice that they cannot avoid responsibility for fencing when they assume ownership of abandoned railway rights-of-way.

The fencing requirement (Section 20 of the Act) is nothing new. In fact, it was the subject of a report to the Ministry of Municipal Affairs and Housing by Wayne Caldwell, PhD, in March 2005.

In his report, Dr. Caldwell cites Ontario Court decisions enforcing the section, as well as negotiations between a trailway association and landowners in Bruce County.

Historically, he notes, railways acquired the rights-of-way through farmland, often by expropriation. Consequently, they were required to erect fences along the lines to protect livestock.

Now it seems that the fences are considered to be a part of the rights-of-way, and must be maintained even though there are no trains to endanger any livestock.

Dr. Caldwell's study centred partly on the emergence of trailway uses for the abandoned lines. At the time of the study, a lawsuit against East Luther Grand Valley by an ad hoc group of property owners abutting or straddling a right-of-way that had become a trailway was still before the Superior Court. The township lost at that level, but appealed the decision and now has lost the appeal.

The ELGV situation involves only a maximum of 22 kilometres of page-wire fence, but the costs of that could be burdensome, if not financially crippling, for the tiny township.

Of broader consequence, however, let us consider that the counties of Dufferin and Grey have taken ownership of the former Orangeville-to-Owen Sound CP Rail line, and Orangeville owns the operating portion of the line south to Streetsville.

What are the implications?

In our view, Ontario municipalities should be seeking an amendment to the Act, such that abandoned rail lines would be treated in the same fashion as any other property, with the cost of fencing being borne by those property owners who want the fences.

This is not to say that municipalities should be absolved of all responsibility, but only that the costs of line fences should be treated similarly for all classes of property.

As we see it, it's patently ridiculous that municipal owners of trailways should have to pay for fencing that benefits only the abutting property owners.