Supreme Court of Canada

Canadian Pacific Ltd. et al v. Town of Vulcan, [1980] 2 S.C.R. 177

Date: 1980-10-15

Canadian Pacific Limited and Marathon Realty Company Limited Appellants/Cross‑Respondents;

and

The Town of Vulcan Respondent/Cross-Appellant;

and

The Provincial Planning Board Cross-Respondent;

and

The Attorney General of Canada, The Attorney General of Alberta and The Attorney General of British Columbia Interveners.

1980: October 15.

Present: Laskin C.J. and Martland, Ritchie, Dickson, Estey, Mclntyre and Lamer JJ.

ON APPEAL FROM THE COURT OF APPEAL OF ALBERTA

Planning—Railway lands—Sale of portion surplus to railway requirements—Application for subdivision approval—Applicability of provisions of planning legislation—The Planning Act, R.S.A. 1970, c. 276, ss. 25, 26—The Subdivision and Transfer Regulation, A.R. 215/67, s. 19.

The appellant (CP) was the owner of a parcel of land in Vulcan, Alberta, which contained 38.62 acres and was occupied and used by CP for its interprovincial railway operations. A portion of the parcel became surplus to railway requirements and CP sold this portion (17.94 acres) to the appellant (Marathon). Marathon applied to the Oldman River Regional Planning Commission for subdivision approval. Subdivision was approved on several conditions, one being that “the 10% Reserve requirement pursuant to s. 26(1) of the Planning Act, be waived on 24.40 acres and be taken as payment-in-lieu…” Marathon and CP appealed this decision to the Provincial Planning Board, and the Board decided that the reserve should be computed on the basis of only the 17.94 acres of surplus lands.

The Town of Vulcan appealed to the Supreme Court of Alberta, Appellate Division, which held that the reserve is to be calculated at 10 per cent of the entire parcel of 38.62 acres. Pursuant to leave granted by the Court of Appeal of Alberta, an appeal was brought to this Court.

[Page 178]

APPEAL from a judgment of the Court of Appeal of Alberta allowing an appeal from a decision of the Provincial Planning Board. Appeal allowed; cross-appeal dismissed.

N.D. Mullins, Q.C., and M.M. Szel, for the appellants.

M.J. Major, for the Town of Vulcan.

W.J. Nugent, for the Provincial Planning Board.

T.B. Smith, Q.C., and James M. Mabbutt, for the Attorney General of Canada.

W.A. Pearce, for the Attorney General of British Columbia.

W. Henkel, Q.C., for the Attorney General of Alberta.

The judgment of the Court was delivered orally by

THE CHIEF JUSTICE—We are all of the opinion that this appeal should be allowed, the judgment of the Alberta Court of Appeal set aside and the order of the Provincial Planning Board restored. The appellants are entitled to costs throughout. The cross-appeal is dismissed with costs in this Court. The order of the Provincial Planning Board shall be effective for six months from the date of this judgment.

Judgment accordingly.

Solicitor for the appellants: M.M. Szel, Calgary.

Solicitors for the respondent: Major, Caron & Co., Calgary.

Solicitor for the Provincial Planning Board: W.J. Nugent, Edmonton.

Solicitor for the Attorney General of Alberta: W. Henkel, Edmonton.

Solicitor for the Attorney General of Canada: Roger Tassé, Ottawa.

Solicitor for the Attorney General of British Columbia: Department of the Attorney General, Victoria.