FALSE

Canadians do in fact enjoy broad property rights, even though it is not one of the many enumerated rights and freedoms guaranteed by the Canadian Charter of Rights and Freedoms.

While property rights are not explicitly enumerated in the Charter, they are deeply rooted in the Magna Carta, common law, statutes, and natural law principles that underpin our constitutional tradition.

Property rights are sometimes described as a  “bundle” of related rights that co-exist and  guarantee (in the simplest terms) that something is yours and not someone else’s. 

These rights are derived from different sources and include written statutes, historical conventions, and traditional understandings about the sorts of things a person can claim possession and exclusive control over a thing.

Many of these sources pre-date the Charter, and Canada itself. Some argue they are found in “natural law” and exist without being written down.

Statutes that protect property rights include the 1960 Federal Bill of Rights, which recognizes enjoyment of property and due process, although it only applies to federal legislation. The Quebec Charter of Human Rights and Freedoms explicitly protects enjoyment of property too. The Alberta Bill of Rights protects against government taking property without compensation. 

TRUE

The government can regulate or expropriate (that is take for its own purposes) property for public benefit if they follow certain procedures. 

When governments wish to take property for a new highway or railway, they can legally do so but they must follow statutes such as the federal Expropriation Act, RSC 1985, c E-21, which gives property owners certain due process rights including the ability to argue about what counts as fair compensation.

But what if it isn’t obvious that the government has actually taken possession of someone’s property? Can that ever be the case? 

Yes, the common law protects owners against such arbitrary interferences. The doctrine of “constructive taking” (sometimes called de facto expropriation) requires compensation when regulations or other government actions strip a property of all reasonable uses and the government gains an advantage from it. A famous example of this is when Halifax regulated a private property to turn it into a de facto public park without compensating the owners (see Annapolis Group Inc. v. Halifax Regional Municipality, 2022 SCC 36).

FALSE

“Property and civil rights” are an exclusively provincial power under the division of powers in the Constitution Act, 1867 (UK). 

That said, the Constitution Act, 1867 gives the exclusive power to regulate some aspects of our lives to the federal government in Ottawa that touch upon property.

For example, Ottawa can impact property rights through its exclusive powers including the powers over the military and defence (by deciding where bases get built), Indians and Lands reserved for the Indians (by regulating property rights on reserves) or interprovincial works and undertakings (impacting property by building airports and railways). 

Municipalities are creatures of the province and therefore they can regulate property rights too.

FALSE

Property is best understood as a “bundle of rights” rather than one absolute claim. These rights include usage, excluding other people from it and transferring it to other people, but property owners are also subject to social obligations that come with property ownership, such as public safety, environmental regulations, and not creating nuisances like fires or excessive noise.

Depending on the nature of the property in question, one’s ability to do as one wishes is limited by a large array of provincial and federal statutes, by-laws and by the common law (binding, judge-written rules). 

A detached house may be subjected to by-laws that regulate how high it can be or how much space it can take up. A condominium unit will be subject to the condo corporation’s rules as outlined in its unique by-laws dealing with renovations, aesthetics, the ability to keep pets, etc. Condo owners have very little authority over these rules and by-laws except through their votes in condo board elections and annual meetings.

TRUE

Ordinarily, ownership is conferred (and confirmed) by legal title; literally a document that denotes the person who enjoys the entire bundle of property rights.

However, in some circumstances the court can determine that someone other than the lawful owner also has some legal interest in the property. This occurs most often in cases of so-called “unjust enrichment.” Unjust enrichment refers to a situation in which one party benefits at the expense of another. 

This is typically very difficult to demonstrate. The threshold is very high.

For example, the Supreme Court of Canada found that a spouse’s decades-long involvement, contribution, and effort supporting her spouse’s business entitled her to an interest in the business when their relationship ended. This occurred despite all of the assets of the business being under her spouse’s name. The Court found that to leave the spouse with nothing whatsoever would be unfair. In that case, the defendant had been enriched (i.e., he benefited from his ex-spouse’s efforts over years), the plaintiff had suffered by the degree to which the defendant benefitted, and there was no juristic reason (like a contract between them) that justified the imbalance.

FALSE

When we think of “property rights,” we are usually thinking about land, which lawyers call “real property,” or possessions like a truck or a boat. But property can also be non-tangible.  For example, intellectual property (“IP”) refers to the exclusive rights enjoyed by the creator of an idea, design, work of art, invention, and so forth, as the case may be.

Naturally, no one believes that buying a book transfers ownership of the book’s ideas or story to the purchaser. Instead, the purchaser enjoys a license: the ability to use, share, and engage with the creative product. 

A license is best understood as a conditional right to access the property. For example, unlike purchasing a physical book, purchasing an e-book grants a licence that may be revoked, depending on the terms and conditions, making the e-book inaccessible.

In Canada, the major forms of intellectual property—copyright, patents, and trademarks—are governed by federal statutes; the Copyright Act, RSC 1985, c C-42, the Patent Act, RSC 1985, c P-4, and the Trademarks Act, RSC 1985, c T-13, respectively. 

Intriguingly, intellectual property is not the only form of non-tangible property. In the landmark Supreme Court of Canada decision in Manitoba Fisheries Ltd. v. The Queen, 1978 CanLII 22 (SCC), [1979] 1 SCR 101, clarified that a company’s “goodwill” (i.e., the relationships they had developed with customers and reputation) was a form of property. In that case, the federal government passed a law (the Freshwater Fish Marketing Act) that, among other things, created the federal Freshwater Fish Marketing Corporation and granted it a commercial monopoly “in the export of fish.” Doing so prohibited Manitoba Fisheries Ltd. (and anyone else) from carrying on the business of exporting fish, effectively putting the company out of business. No compensation was provided. The Supreme Court ruled that the federal government had effectively taken the company’s property, namely, the goodwill they had spent years building.

TRUE

Possession and ownership are not the same thing, although possession does allow for a powerful property claim. Generally speaking, when something lost is then found, the “finder” can argue that he enjoys the complete bundle of property rights associated with ownership; second only to the “true owner.” But if the true owner turns up, they have to give it back.

Using a wristwatch as an example, the true owner or prior owner, is that person who can prove that the watch is actually his and was just lost. In other words, losing the watch does not necessarily transfer ownership to the person who finds it, nor does it prevent its recovery later.

Of course, it could be the case that there is no prior owner. That is, the original owner of the watch may have abandoned it altogether and relinquished any interest in it. In such a situation, there is no possibility of anyone else asserting ownership and the finder gets to keep it.

A notable exception to the general rule that a finder may keep found property relates to proceeds of crime. In 1997, a VIA Rail employee found an unattended duffel bag in Toronto’s Union Station. Within the bag was $90,000 USD. The employee applied to the court for an order declaring that the found property was rightfully his (see Stonkus v. R., 2001 CarswellOnt 1565, [2001] O.J. No. 1771, 50 W.C.B. (2d) 82). The court denied his application because the money was discovered to be connected to a criminal transaction.

FALSE

So-called “squatter’s rights,” referred to legally as “adverse possession,” are now significantly restricted across Canada, although there is variation between the provinces.

Alberta has effectively abolished any claim of ownership on the basis of adverse possession. With few exceptions, the true owner of the land can go to court to recover his land at any point in time.

In British Columbia, the only remaining property rights gained by adverse possession are those established before July 1, 1975.

Similarly, in Saskatchewan, Manitoba, and Ontario, anyone seeking to claim a right to possess land must have done so before the provinces’ respective conversion from a land registry system (where deeds were registered) to a land titles system (where titles are guaranteed by government in a public database). In Ontario, this began in the late 1990s.

Asserting squatter’s rights, even where it is still theoretically possible, is difficult. Generally, the person claiming ownership in this form must prove (1) actual possession for the statutory period (for example, 10 years in Ontario), (2) that the possession was with the intention of excluding the owner, and (3) the uninterrupted exclusion of the owner for the entire period of time.

TRUE

How property is distributed when a person dies is determined by whether he or she was married or not and whether he or she had a valid will or not. 

A person without a will is referred to as “intestate.” Every province addresses this circumstance through legislation, and those of Saskatchewan, Manitoba, and Newfoundland and Labrador are explicitly named the “Intestate Succession Act.”

Typically, when a person dies without a will and he or she is married, all of his or her property passes to the surviving spouse.

If an unmarried person dies without a will, the property will pass to family, and the specific distributions are governed by the law of the particular province. For example, in Ontario the property is divided among children, if any. If there are no children it is divided among any living parents. If there are no parents, it goes to other blood relatives. If there are no relative, the state.

Of course, if a person dies with a valid will, the property will pass to the people entitled to receive it under the will.

TRUE

The Courts have recognized “Aboriginal title” as one of the existing aboriginal and treaty rights under Section 35(1) of the Constitution Act, 1982.

The right to land conferred by Aboriginal title is entirely distinct from the common law and civil law (in Quebec) conceptions of property rights. Aboriginal title is an interest in the land that is collective and extends into the future. It can be extinguished by the Crown, and in many parts of Canada, it has been extinguished through treaties. It has been recognized in parts of British Columbia and cases are ongoing in other provinces. 

As with all Aboriginal rights, the government has a duty to consult and try to accommodate where its decisions will impact Aboriginal title. 

The Supreme Court has said that the government can, in some cases, justify infringing on Aboriginal rights including Aboriginal title.

FALSE

There are circumstances in which the police may enter private property without prior judicial authorization (i.e., a warrant).

For example, police may enter private property during a “hot pursuit” in order to arrest a suspect who they have just seen commit a crime. The pursuit must be continuous.

Similarly, the Criminal Code outlines so-called “exigent circumstances” where time is of the essence and it is impracticable to obtain a warrant. One example is a person inside a house screaming for help. 

In scenarios where there is an imminent risk of harm (to anyone), or an offence is being committed, entry may be justified. They may also enter to prevent the destruction of evidence.

Finally, under the implied license doctrine, police can enter onto property – as far as the front door – in order to speak with the property owner. The owner can also ask them to come back with a warrant.