Who can truly be said to own Lansdowne in a meaningful way?
Photo: Jock Smith
By Randal Marlin
In the biblical story of Babel, the idea that humankind could reach heaven through technological means – building a tower to reach it – was foiled when, at a certain moment, people found themselves unable to communicate. It is usually interpreted to mean they found themselves talking in different languages.
I recall a distinguished philosophy professor at McGill, Raymond Klibansky, using the story to illustrate a problem with modern communications. Whereas the Babel problem was having different words to mean the same thing, today we have the same word to mean different things.
Take the word “ownership.” It’s a wonderful thing, isn’t it, to own things? Think of owning a castle, or a corporation that will provide you with all kinds of amenities, including travel that can be written off as a business expense. But wait a moment: can we not also say that you own the product that you hold in a plastic bag, the result of scooping up the leavings of your pet dog?
These thoughts came to mind as I contemplated Councillor Shawn Menard’s seemingly comforting statement regarding Lansdowne 2.0, that while the City of Ottawa might be transferring park and recreation land to developers for a token $1, it would still retain “ownership” in the land. “Whew,” you might say, no need to worry. The park and recreation space will still be owned by the city.
My contention is that when you analyze the notion of ownership, it is problematic to say that under Lansdowne 2.0 the City will continue to own the land. It may be agreed that in a legal sense, the City would retain title to the land, but so many of the important rights and privileges connected with ownership, as the word is used in common parlance, would no longer exist.
Here are features, or incidents, of ownership as described in a seminal essay by Oxford Roman Law professor A.M. (Tony) Honoré in the early 1960s: “Ownership comprises the right to possess, the right to use, the right to manage, the right to the income of the thing, the right to the capital, the right to security, the rights or incidents of transmissibility and absence of term, the prohibition of harmful use, liability to execution, and the incident of residuarity.”
Later authorities have added to the list, including such things as powers to transfer, waive, exclude and abandon, liberties to consume or destroy and immunity from expropriation.
Not all of the stated features must be present for ownership, but to the extent that there are fewer of them, it becomes less appropriate to talk of “ownership.” The listed incidents are not always favourable to the owner. Liability to execution, for example, means you might lose your property if a court decides you need to sell it to fulfill some legal obligation (though it also means you can more readily borrow with your property as security).
One last thing to consider is the implication that would accompany any agreement where the developer contracts to be able to hand back the relevant rights and powers, and suchlike, to the city when it suits them. What if, after many decades, the buildings are no longer functional and the developer exercises the option? I think again of what the dog-owner owns, along with the dog.
It’s easy to see that with Lansdowne 2.0 most of the significant features covered by the word “ownership” apply to what the City hands over to developers, and it is highly misleading, though perhaps legally defensible, to say that the City will continue to “own” the park and recreation land handed over to developers.
That’s because the same word means something different to lawyers thinking of title and ordinary folk thinking in broader terms. It’s a case where linguistic ambiguities can be exploited to the disadvantage of the taxpaying public. Let’s make sure that we get full transparency about Lansdowne 2.0 before any further moves are made towards re-zoning.
Randal Marlin is a longtime Glebe resident, former member of the city’s Lansdowne Park Advisory Committee and former president of the GCA, which actively opposed implementation of the proposed mega expansion of Lansdowne Park to Fifth Avenue in the 1970s.