Leiriao v. Val‑Bélair (Town), [1991] 3 S.C.R. 349
Alexandre Leiriao Appellant
v.
The Municipal Corporation of the
Town of Val‑Bélair Respondent
Indexed as: Leiriao v. Val‑Bélair (Town)
File No.: 21755.
1991: June 17; 1991: November 7.
Present: Lamer C.J. and La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory and McLachlin JJ.
on appeal from the court of appeal for quebec
Expropriation ‑‑ Municipal law ‑‑ Land reserve ‑‑ Municipal council authorizing by resolution expropriation of immovable property for land reserve ‑‑ Whether Cities and Towns Act gives municipalities a power to expropriate for land reserve ‑‑ Whether phrase "for purposes of a land reserve" contained in expropriation notice meets requirements of s. 40 of Expropriation Act ‑‑ Whether resolution adopted by municipal council sufficient to authorize expropriation ‑‑ Cities and Towns Act, R.S.Q., c. C‑19, ss. 29.4, 570 ‑‑ Expropriation Act, R.S.Q., c. E‑24, s. 40.
The respondent town adopted a resolution authorizing expropriation of the appellant's immovable property for purposes of a land reserve. After receiving the notice of expropriation, the appellant challenged the respondent's right to expropriate in the Superior Court. The court allowed his application and quashed the resolution and the notice of expropriation. The judge held that the expression "municipal purpose" in s. 570 of the Cities and Towns Act, which gives the town a general power of expropriation, must be limited to the public services which the Act makes the municipality responsible for, and this excludes the creation of land reserves under s. 29.4 of the Act. He further held that simply mentioning "for purposes of a land reserve" in the notice of expropriation did not meet the requirements of s. 40(2) of the Expropriation Act. The Court of Appeal, in a majority decision, reversed the Superior Court's judgment.
Held (Lamer C.J. and La Forest and L'Heureux‑Dubé JJ. dissenting): The appeal should be dismissed.
Per Sopinka, Gonthier, Cory and McLachlin JJ.: Section 29.4 of the Cities and Towns Act allows a town to acquire immovable property by expropriation in order to create a land reserve. This interpretation is most consistent with the scheme of the legislation and intent of the legislature, and gives s. 29.4 its full meaning. That section, enacted in 1985, was intended to give all cities and towns the powers which some of them already had to create land reserves under private Acts. Unlike the private Acts, however, s. 29.4 only gives a power of ownership and does not specify any methods by which immovable property can be acquired. The acquisition of immovable property to create a land reserve must accordingly be done using the general powers of acquisition contained elsewhere in the Cities and Towns Act, by mutual agreement under s. 28 or by expropriation under s. 570. All cities and towns thus have the same powers of acquisition regarding land reserves, though the actual wording may vary from one type of statute to another. Although s. 29.4 deals with ownership of immovable property "for the purposes of a land reserve", while s. 570(c) makes the expropriation applicable "for any municipal purpose", no distinction should be made between these two phrases. The creation of land reserves is a municipal purpose.
The phrase "for purposes of a land reserve" contained in the notice of expropriation meets the requirements of s. 40(2) of the Expropriation Act, which provides that the notice of expropriation must contain a "precise statement of the purposes of the expropriation". The provisions of a statute dealing with procedure, the Expropriation Act, should not be used to limit a right conferred in broad terms by the statute dealing with the substance of the right, namely the Cities and Towns Act. Since the creation of a land reserve is a municipal purpose, it follows that the phrase "for purposes of a land reserve" is sufficiently precise. By definition, a land reserve is created without the ultimate use of the immovable property it comprises being known. Any details in addition to the notice of expropriation would thus make the exercise by the town of the power contained in s. 29.4 illusory.
Where an abuse exists, there are remedies by which the expropriated party can establish that the expropriation for a land reserve is invalid. If under cover of a land reserve an expropriation was made for reasons contrary to the interests of the public as a whole, the expropriated party would be able to allege and prove the real reasons for the expropriation. Here the appellant never questioned the respondent's good faith in this Court.
Where there is no legislation as to the way in which a municipality may express its decision, a resolution is a valid method of decision. Section 570 of the Cities and Towns Act does not specify whether the expropriation must be made by by‑law or by resolution. The resolution adopted by the town was therefore an adequate means of deciding on the expropriation. As with the notice of expropriation, it was not necessary to define the land reserve further in the resolution.
Per Lamer C.J. and La Forest and L'Heureux‑Dubé JJ. (dissenting): Section 29.4 of the Cities and Towns Act does not confer upon all Quebec municipalities the unqualified right to expropriate for the purposes of a land reserve. Section 570 of the Act, which deals with the municipal corporation's right of expropriation, limits it to "any municipal purpose". Although there is no specific definition of this term, it can only refer to areas of activity specifically assigned to municipal corporations in the interests of a community. The right to own immovable property for purposes of a land reserve under s. 29.4 can only be an incidental purpose, which must be related to some other genuinely municipal purpose or to the public interest.
A conclusion that a land reserve is a municipal purpose and, as such, may be the sole ground for an expropriation by a corporation, completely disregards the need to justify expropriation on the grounds of public utility. In so doing, it offends arts. 406 and 407 C.C.L.C., s. 6 of the Quebec Charter of Human Rights and Freedoms, and the general principle of sanctity of an individual's property in Quebec. It is not self‑evident that expropriation for the sole purpose of creating a land reserve is in the public interest, which is what the law requires. An interpretation of s. 29.4 which permits expropriation for no other reason than the creation of a land reserve would allow municipalities to circumvent the requirement that expropriation be in the public interest, and would facilitate the abuse of the expropriation power.
Further, an unqualified power of expropriation for the purpose of a land reserve implicitly contradicts ss. 35 and 40(2) of the Expropriation Act. The requirement of a precise statement of the purposes of expropriation is incompatible with a power of expropriation for no other reason than the establishment of a land reserve, which is at the very least an imprecise reason, if it is a reason at all. A reference to the creation or expansion of a land reserve would allow the town to hide its true intentions. The requirement in s. 40(2) that a municipality state its precise reasons for expropriation is more than a procedural requirement. It is the basis for any defence which a property owner might have against a proposed expropriation.
Finally, expropriation constitutes a drastic interference with an individual's right to property and, because it is such an exorbitant power, a statute enabling expropriation must be construed restrictively. A restrictive interpretation of s. 29.4 is incompatible with the conclusion that a land reserve is a distinct municipal purpose which may serve as the sole ground for expropriation by a corporation. The section accords only a power to own property for the purposes of a land reserve. There is no reference to expropriation. Since expropriation is not the only means of acquiring property, the right to own does not necessarily confer a right to expropriate. As well, the presumption that s. 29.4 has conferred an extended expropriation power on all cities and towns in Quebec contradicts the principle that no major change in the law is presumed in the absence of clear legislative language. This presumption is not supported by the adoption, prior to the enactment of s. 29.4, of private Acts explicitly giving various municipalities the right to expropriate for the purposes of a land reserve. The assumption that previous legislation implies a change in the law which is not expressly stated is unwarranted. In any event, a simple comparison of texts shows important differences between the town charter provisions and s. 29.4.
Cases Cited
By Gonthier J.
Applied: Air Canada v. City of Dorval, [1985] 1 S.C.R. 861; distinguished: Société Inter‑Port de Québec v. Société immobilière Irving Ltée (1986), 1986 CanLII 3910 (QC CA), 37 L.C.R. 30, [1987] R.D.J. 1; Brant Dairy Co. v. Milk Commission of Ontario, 1972 CanLII 11 (SCC), [1973] S.C.R. 131; referred to: Belcourt Inc. v. Saint‑Laurent (Ville), [1990] R.J.Q. 1122; Belcourt Inc. v. Kirkland (Ville), J.E. 90‑91; Collins v. Laval (Ville), J.E. 89‑899; 117080 Canada Ltée v. Longueuil (City) (1988), 1988 CanLII 5700 (QC CS), 39 L.C.R. 342, [1988] R.J.Q. 538; Cons. d'État, May 8, 1981, Ministre de l'Intérieur v. Parvau, Rec. Cons. d'Ét., p. 770; Hamelin v. Laval (Ville), J.E. 88‑923; Bédard v. Québec (Ville) (1988), 21 Q.A.C. 189; Landreville v. Town of Boucherville, 1978 CanLII 202 (SCC), [1978] 2 S.C.R. 801.
By L'Heureux‑Dubé J. (dissenting)
Harrison v. Carswell, 1975 CanLII 160 (SCC), [1976] 2 S.C.R. 200; Société Inter‑Port de Québec v. Société immobilière Irving Ltée (1986), 1986 CanLII 3910 (QC CA), 37 L.C.R. 30, [1987] R.D.J. 1; Air Canada v. City of Dorval, 1985 CanLII 40 (SCC), [1985] 1 S.C.R. 861; City of Verdun v. Sun Oil Co., 1951 CanLII 53 (SCC), [1952] 1 S.C.R. 222.
Statutes and Regulations Cited
Act respecting land use planning and development, R.S.Q., c. A‑19.1, s. 85 [am. 1983, c. 57, s. 34].
Act to amend the Charter of the City of Granby, S.Q. 1984, c. 59, s. 10.
Act to amend the Cities and Towns Act, S.Q. 1959‑60, c. 76.
Act to amend legislative provisions concerning municipalities, S.Q. 1983, c. 57.
Act to amend various legislation respecting municipalities, S.Q. 1985, c. 27, s. 14.
Charter of the City of Montreal, 1960, S.Q. 1959‑60, c. 102, art. 964b. [ad. 1973, c. 77, s. 70].
Charter of Human Rights and Freedoms, R.S.Q., c. C‑12, s. 6.
Cities and Towns Act', 1922, S.Q. 1922, 13 Geo. 5, c. 65.
Cities and Towns Act, R.S.Q., c. C‑19, ss. 28(1)(2) [repl. 1984, c. 38, s. 5], 28.1 [ad. 1983, c. 57, s. 42], 28.2(1) [idem], 28.3 [idem; am. 1984, c. 38, s. 6; am. 1985, c. 27, s. 12], 28.4 [ad. 1983, c. 57, s. 42], 29.4 [ad. 1985, c. 27, s. 14], 570.
Civil Code of Lower Canada, arts. 406, 407.
Code of Civil Procedure, R.S.Q., c. C‑25, art. 2.
Code de l'urbanisme (France), arts. L. 222‑1, L. 300‑1.
Expropriation Act, R.S.Q., c. E‑24, ss. 35, 40(2) [repl. 1983, c. 21, s. 8], 44 [repl. idem; am. 1986, c. 61, s. 15].
Authors Cited
Challies, George Swan. The Law of Expropriation, 2nd ed. Montréal: Wilson & Lafleur, 1963.
Coke, Sir Edward. The Third Part of the Institutes of the Laws of England. London: W. Clarke, 1809.
Côté, Pierre‑André. The Interpretation of Legislation in Canada, 2nd ed. Translated by Katherine Lippel, John Philpot and William Schabas. Cowansville, Que.: Éditions Yvon Blais Inc., 1984.
Dorion, Guy et Roger Savard. Loi commentée de l'expropriation du Québec. Québec: Presses de l'Université Laval, 1979.
Maxwell on the Interpretation of Statutes, 12th ed. By P. St. J. Langan. London: Sweet & Maxwell, 1969.
Todd, Eric C. E. The Law of Expropriation and Compensation in Canada. Toronto: Carswell, 1976.
APPEAL from a judgment of the Quebec Court of Appeal, 1989 CanLII 1177 (QC CA), [1989] R.J.Q. 2668, 36 Q.A.C. 1, reversing a judgment of the Superior Court, [1988] R.J.Q. 757, [1988] R.D.I. 161. Appeal dismissed, Lamer C.J. and La Forest and L'Heureux‑Dubé JJ. dissenting.
Michel Bouchard, for the appellant.
Pierre Laurin, for the respondent.
The reasons of Lamer C.J. and La Forest and L'Heureux-Dubé JJ. were delivered by
//L'Heureux-Dubé J.//
Dissenting Reasons of L'Heureux-Dubé J.
L'Heureux-Dubé J. (dissenting) -- I have had the benefit of the reasons of Justice Gonthier and, with great deference, I do not agree. I share Chouinard J.A.'s opinion in dissent in the Quebec Court of Appeal that the Cities and Towns Act, R.S.Q., ch. C‑19 (hereinafter "C.T.A.") has not given unqualified authority to all municipalities in the province of Quebec to expropriate for the purposes of a land reserve. Consequently, I would allow the appeal and reinstate the judgment of the Superior Court.
The facts of this case are relatively simple. The appellant owns property in the respondent municipality of Val‑Bélair which is the site of his business and sole source of income, an auto body and radiator and gas tank repair shop. Before attempting to expropriate this land, the respondent, through an intermediary management company known as La Société Immoco, tried unsuccessfully to persuade the appellant to sell it. When these attempts to purchase the land failed, the municipality introduced a series of by‑laws which would restrict or eliminate the type of business operated by the appellant within the town limits of Val‑Bélair. In effect, this legislation created a new zone to which the appellant's business would be restricted. This zone was confined to three pieces of property measuring 200 feet by 700 feet in total and situated in the extreme outskirts of Val‑Bélair. Following the publication of notices about this legislation, the respondent served the appellant with a notice of expropriation. The sole reason listed for the expropriation was for the purpose of creating a land reserve (réserve foncière).
The appellant contested the expropriation by way of motion before the Superior Court of Quebec. Larue J., at [1988] R.J.Q. 757, allowed the contestation, finding that the basis for the expropriation, s. 29.4 C.T.A., did not give to municipalities the right to expropriate for the purposes of a land reserve without further specifying the intended use of the property. A majority of the Court of Appeal overturned this decision for the reasons expressed by Mailhot J.A. at 1989 CanLII 1177 (QC CA), [1989] R.J.Q. 2668. In her opinion, s. 29.4 created a new municipal purpose (fin municipale) in accordance with s. 570 C.T.A. In his dissent, Chouinard J.A. argued that statutes authorizing expropriation should be interpreted restrictively. Since expropriation was an exorbitant power and s. 40 of the Expropriation Act, R.S.Q., ch. E‑24 (hereinafter "E.A.") requires a precise statement of the reasons for it, he concluded that the power to possess property for the purposes of a land reserve was only an accessory ground for expropriation which must be tied to another, recognised municipal purpose or to the general public interest.
I agree with Gonthier J. and with the courts below that the only issue in this case is the interpretation of s. 29.4 C.T.A. Specifically, the validity of the respondent's attempted expropriation of the appellant's land hinges on whether or not a land reserve can be viewed, by itself, as a legitimate municipal purpose and hence, in the public interest. Before addressing this issue, however, it is necessary to review briefly the nature of property rights and expropriation in Quebec, as well as the consequences of an unfettered power of expropriation for the purposes of a land reserve.
I - Property Rights in Quebec
Property Rights in Quebec
In Quebec, no one can be deprived of property unless it is in the public interest and for just compensation, according to arts. 406 and 407 of the Civil Code of Lower Canada:
Ownership is the right of enjoying and of disposing of things in the most absolute manner, provided that no use be made of them which is prohibited by law or by regulations.
No one can be compelled to give up his property, except for public utility and in consideration of a just indemnity previously paid.
These provisions are buttressed by s. 6 of the Quebec Charter of Human Rights and Freedoms, R.S.Q., c. C‑12:
- Every person has a right to the peaceful enjoyment and free disposition of his property, except to the extent provided by law.
It is significant that the right to peaceable enjoyment of property is declared not only in the Civil Code, but also in the Quebec Charter. Both the legislator and society as a whole recognise the truth of Edward Coke's adage that "a man's house is his castle, et domus sua cuique tutissimum refugium [and one's home is the safest refuge to everyone]" (3 Inst., at p. 161).
II - Expropriation
Expropriation
Since property rights are considered fundamental in our democratic society, any legislation which purports to interfere with those rights must do so in a clear, specific and precise manner. Also, and in accordance with art. 407 C.C.L.C., such interference may only be effected in the interest of public utility.
Expropriation constitutes a drastic interference with an individual's right to property. It allows a government to deprive a person of his or her land. In some cases this may mean that an individual loses a home, a "safest refuge". In other cases, such as the case at bar, expropriation may lead to the loss of one's livelihood.
Because property is a fundamental legal right, and because expropriation is such an exorbitant power, Canadian law has consistently favoured a restrictive interpretation of statutes enabling expropriation. In The Interpretation of Legislation in Canada (2nd ed 1991), P.‑A. Côté writes at pp. 401-2:
STATUTES WHICH ENCROACH UPON
ENJOYMENT OF PROPERTY
"Anglo‑Canadian jurisprudence has traditionally recognized, as a fundamental freedom, the right of the individual to the enjoyment of property and the right not to be deprived thereof, or any interest therein, save by due process of law". To this right corresponds a principle of interpretation: encroachments on the enjoyment of property should be interpreted rigorously and strictly.
Rigorous interpretation: conditions imposed by statute that limit the enjoyment of property must be respected strictly. Restrictive interpretation: if a genuine problem in interpreting such legislation arises, the judge is justified in choosing the construction that limits the effect of the law and favours the enjoyment of property.
The principle is particularly relevant to expropriation legislation.
Similarly, the following is found in Maxwell on the Interpretation of Statutes (12th ed. 1969), at pp. 251‑52:
Statutes which encroach on the rights of the subject, whether as regards person or property, are subject to a strict construction in the same way as penal Acts. It is a recognised rule that they should be interpreted, if possible, so as to respect such rights, and if there is any ambiguity the construction which is in favour of the freedom of the individual should be adopted. [Emphasis added.]
And finally, in the words of G. S. Challies in The Law of Expropriation (2nd ed. 1963), at p. 12:
[T]he right to expropriate, being an unusual and exorbitant right, must be found in the express words of a statute for the right is never implied.
See also E. C. E. Todd, The Law of Expropriation and Compensation in Canada (1976), at pp. 26‑29, and Harrison v. Carswell, 1975 CanLII 160 (SCC), [1976] 2 S.C.R. 200, at p. 219.
III ‑ Land reserves
Section 29.4 C.T.A. reads:
Land Reserves
29.4 A corporation may own immovables for the purposes of a land reserve. [Emphasis added.]
Based on this provision, the majority of the Court of Appeal and my colleague Gonthier argue that a land reserve is a municipal purpose and, as such, may be the sole ground for an expropriation by a corporation. I am unable to accept this argument for two reasons. First, it leads to a conclusion which contradicts other provisions within both the C.T.A. and the E.A., and completely disregards the need to justify expropriation on the grounds of public utility. In so doing, it offends arts. 406 and 407 C.C.L.C., s. 6 of the Quebec Charter of Human Rights and Freedoms, and the general principle of sanctity of an individual's property in Quebec. Second, the interpretation of s. 29.4 used in this argument is liberal, while the construction of expropriation statutes should be restrictive.
The term "land reserve" is not defined either in the C.T.A. or the E.A. According to the majority in the Court of Appeal, a land reserve is a collection of properties the purposes of which are indeterminate at the time at which they are acquired. While this definition may be accurate for general purposes, as regards municipal expropriation, however, it does not per se imply the existence of a municipal purpose, because such an assumption ignores the requirement in art. 407 C.C.L.C. that expropriation be exercised only in the public interest. If a land reserve is defined by its lack of purpose, it is presumptively impossible to conclude that its creation is for the betterment of the collectivity. It is not self-evident that expropriation for the sole purpose of creating a land reserve is in the public interest, which is what our law requires. On this point I adopt wholeheartedly the remarks of Chouinard J.A., who wrote at pp. 2670‑71:
[translation] Section 570, which deals with the municipal corporation's right of expropriation, limits it to "any municipal purpose". Though there is no specific definition of this term, it can only refer to areas of activity specifically assigned to municipal corporations in the interests of a community. Sections 428 and 429 of the Cities and Towns Act list them; it goes without saying that the number and nature of these purposes have changed over time: from primary functions such as policing and fire protection, water and sewage services, they have come to include recreation, libraries, zoning and even low‑cost housing or housing designed to avoid speculation, for example. However, such purposes were always related to the interests of the community. From this point of view, the right to own immovable property for purposes of a land reserve can only be an incidental purpose, which must be related to some other genuinely municipal purpose or to the public interest.
Did the provincial legislature intend to give municipal corporations the exorbitant power of owning immovable property for purposes of business or resale and to add to this already exorbitant power that of expropriating those that own them without public interest grounds?
There is no question that s. 29.4 C.T.A. may be invoked accessorily by municipalities wishing to expropriate property for other legitimate purposes in the public interest. For example, a town might wish to expropriate in order to create a park, to rezone for industrial needs, or to prevent speculation. In particular in the latter example, it might not be capable of specifying the exact use which the property might ultimately serve. However, the reason for the expropriation itself would be a legitimate municipal purpose; that is, the creation of a recreational or industrial area, or the prevention of a socio‑economic ill. The principal purpose of the expropriation would be the interest of the collectivity; the accessory would be the creation of a land reserve, which is all that the text of s. 29.4 C.T.A. explicitly permits.
An interpretation of s. 29.4 which allows expropriation for no other reason than the creation of a land reserve would allow municipalities to circumvent the requirement that expropriation be in the public interest, and would facilitate the abuse of the expropriation power. This case provides a signal example, as Chouinard J.A. points out at pp. 2671‑72:
[translation] Furthermore, the use of the expropriation power by the appellant municipal corporation without further clarification seems to me quite wrong, when we know (as indicated by the evidence) that the same corporation tried unsuccessfully to acquire the respondent's property, even using an independent property management company for this purpose . . . .
In short, the equation of land reserves with a municipal purpose could lend itself to great abuses. So long as corporations must show why it is in the public interest that individuals sell their property, there is scope for challenge of their decisions by the individuals affected as well as by members of the public who might disagree with the corporation's intentions. But, in the absence of this requirement, there is no check on a municipality's power to expropriate, and no basis on which to challenge its decisions.
Given this problem, it is unsurprising that the unqualified power of expropriation for the purpose of a land reserve implicitly contradicts certain provisions of the E.A. Section 35 E.A. establishes the supremacy of its provisions over those of any other law with regard to expropriation:
- This title applies to all expropriations authorized by the laws of Québec and prevails over the inconsistent provisions of any general law or special act.
Section 40(2) sets out the procedure for expropriation:
- Expropriation proceedings commence by service, on the owner of the immovable or the holder of the immovable real right to be expropriated, of a notice of expropriation containing the following particulars:
(2) a precise statement of the purposes of the expropriation;
If a land reserve is a municipal purpose, then a municipality need only inform a landowner that his or her property is required for that reason (as, indeed, the respondent notified the appellant in this case). This hardly constitutes a precise statement of intent. As Larue J. commented at trial at p. 759:
[translation] Section 40(2) of the Expropriation Act requires that the city state precisely the use it intends to make of the land it wishes to acquire. Mere notice that the city wishes to acquire the land for purposes of a land reserve does not meet this requirement. Such a reference to the creation or expansion of a land reserve would allow the city to hide its true intentions, since it could thus indefinitely delay or subsequently alter the use of the expropriated land. Accordingly, the owner would not be informed of the city's true intentions. [Emphasis added.]
In a similar vein, Chouinard J.A. cited ss. 40(2) and 35 E.A. and wrote in his dissent at p. 2671:
[translation] Accordingly, the need for a precise statement of the purposes of expropriation seems to me incompatible with a municipal corporation being able to expropriate without giving any reason other than a land reserve, which is at the very least an imprecise reason, if it is a reason at all.
I agree with this logic, and consequently cannot accept the reasoning of the majority of the Court of Appeal to the effect that a property‑owner might still challenge an expropriation which purported to be for the purpose of a land reserve, but which actually hid improper motives. An expropriation notice which informs a property owner that he is being forced to sell his land to the municipality, without any indication of why his particular property is being singled out for the benefit of the collectivity, leaves him without any real means to contest the decision. It puts the burden on the individual to discover the municipality's reasons, whereas the E.A. clearly establishes that the onus is on the municipality to state its intentions with regard to property it wishes to expropriate.
Gonthier J. dismisses this argument, based on the characterisation of s. 40(2) E.A. as a procedural rule. With respect, the requirement that a municipality state its precise reasons for expropriation is more than a procedural requirement. Section 40(2) is the basis for any defence which a property owner might have against a proposed expropriation. In turn, the idea that a municipality must demonstrate the need for a particular immovable underlies art. 407 C.C.L.C. Monet J.A. of the Quebec Court of Appeal wrote in the earlier case of Société Inter-Port de Québec v. Société immobilière Irving Ltée (1986), 1986 CanLII 3910 (QC CA), 37 L.C.R. 30, [1987] R.D.J. 1, at p. 34 L.C.R.:
[translation] The Act requires not only a statement, but a precise statement.
The basis of this requirement is the principle rooted in our substantive law which is reflected in art. 407 of the Civil Code:
- No one can be compelled to give up his property, except for public utility and in consideration of a just indemnity previously paid.
In other words, not only does the owner have the right to ensure the existence of the right to expropriate, but also to ensure the fact that the intended expropriation is for public utility. Also, when the Legislature requires that the statement be precise, it means that the facts must be set forth therein so as to allow an owner to verify that the right to expropriate is being exercised in the context of public utility.
As Chouinard J.A. points out, Société Inter‑Port de Québec is directly relevant to the case at bar, since the general provisions of the E.A. prevail in both instances. Expropriation impinges drastically on private rights, and the notice required by s. 40(2) E.A. is the only way the individual may ascertain the reasons for the impingement. Thus, the contradiction between the general right of expropriation at s. 29.4 which the respondent claims, and the requirement of a precise statement in the expropriation notice, argues strongly for a restrictive interpretation of the land reserve power limiting it to an accessory role in municipal expropriations.
The second basis for my rejection of the definition of a land reserve as a distinct municipal purpose is the rule of interpretation that expropriation statutes will be restrictively construed. The absence of a reference to expropriation in s. 29.4 is striking . The plain words of the legislation accord only a power to own property for the purposes of a land reserve. According to s. 28(1)(2) C.T.A., a municipality may acquire property "by purchase, donation, devise or otherwise". Even if the expropriation power could be extended through implicit language (which contradicts authorities such as Challies, cited supra), the power to expropriate for the purposes of a land reserve is not even necessarily implied by s. 29.4. All that s. 29.4 C.T.A. clearly states is that municipalities may own properties. Since expropriation is not the only means of acquiring property, the right to own does not necessarily confer a right to expropriate. I hence agree with Chouinard J.A., who concluded at p. 2670:
[translation] . . . the power given to municipal corporations by s. 29.4 does not of itself confer the right of expropriation governed by s. 570.
And further at p. 2671:
[translation] It must be borne in mind that a municipal corporation cannot have more powers or "municipal purposes" than those expressly given by the provincial government.
See also on this point: Air Canada v. City of Dorval, 1985 CanLII 40 (SCC), [1985] 1 S.C.R. 861, and City of Verdun v. Sun Oil Co., 1951 CanLII 53 (SCC), [1952] 1 S.C.R. 222.
As well, the presumption that s. 29.4 has conferred an extended expropriation power to all cities and towns in Quebec contradicts the principle that no important change in the law is presumed in the absence of clear legislative language. Gonthier J. points out that s. 29.4 was preceded by the adoption, from 1973 to 1984, of about thirty private Acts which explicitly gave the right to expropriate for the purposes of a land reserve to various municipalities. He cites s. 964b. of the Charter of the City of Montreal, 1960 enacted in 1973, as a typical enabling provision:
964b. Notwithstanding any act to the contrary, the city is authorized to acquire by agreement or expropriation, any immoveable whose acquisition is considered appropriate for real estate reserves . . . .
Based on the proliferation of these private Acts before 1984 and the enactment of s. 29.4 in 1985, my colleague Gonthier concludes that there is "no doubt that the legislature intended all cities and towns to be able to have land reserves". While this is no doubt accurate, this does not automatically give to municipalities the power to expropriate in the absence of municipal purposes.
The assumption that previous legislation implies a change in the law which is not expressly stated is unwarranted. According to Maxwell on the Interpretation of Statutes, supra, at p. 116:
It is presumed that the legislature does not intend to make any change in the existing law beyond that which is expressly stated in, or follows by necessary implication from, the language of the statute in question. It is thought to be in the highest degree improbable that Parliament would depart from the general system of law without expressing its intention with irresistible clearness, and to give any such effect to general words merely because this would be their widest, usual, natural or literal meaning would be to place on them a construction other than that which Parliament must be supposed to have intended. If the arguments on a question of interpretation are "fairly evenly balanced, that interpretation should be chosen which involves the least alteration of the existing law."
Beyond this interpretative principle, the comparison of the private Acts with s. 29.4 C.T.A. is simply not that instructive. Even if it can be argued that the private Act amendments gave certain cities the unfettered right to expropriate for land reserves, a simple comparison of texts shows important differences between the town charter provisions and s. 29.4. If s. 29.4 represents an amendment like those enacted through earlier private Acts, why is it not phrased in the same careful terms? For example, the amendment to the Charter of the City of Montreal, 1960 begins "Notwithstanding any Act to the contrary. . .", which arguably removes it from the restriction of municipal purposes in the Civil Code, the C.T.A., and the E.A. Since we do not have to decide this point, I will refrain from discussing it at length. However, it is hard to believe that these private Act amendments, despite their more precise language, circumvent the requirement of public interest any more than s. 29.4 C.T.A., given that s. 35 E.A. proclaims its supremacy over all laws which are irreconcilable with its provisions. The extension of the unqualified right to expropriate for the purpose of a land reserve to all Quebec cities and towns would, as discussed above, offend the notion that public utility must underlie expropriation.
IV ‑ Conclusion
For these reasons, I conclude that s. 29.4 C.T.A. does not confer upon all Quebec municipalities the unqualified right to expropriate for the purposes of a land reserve. The respondent Val‑Bélair accordingly could not expropriate the appellant's land on that basis. The stated grounds for expropriation in the notice to appellant did not meet the requirements of the E.A., and the notice is therefore null. I would thus allow the appeal with costs and restore the decision of the trial judge ordering that all expropriation procedures undertaken so far by the respondent are to cease immediately.
English version of the judgment of Sopinka, Gonthier, Cory and McLachlin JJ. delivered by
//Gonthier J.//
Judgment of Sopinka, Gonthier, Cory and McLachlin JJ.
Gonthier J. -- This case concerns the existence of a power to expropriate for a land reserve pursuant to the Cities and Towns Act, R.S.Q., c. C‑19 (hereinafter "C.T.A.") and, if such be the case, how it is exercised.
I ‑ Facts
Facts
The appellant, Alexandre Leiriao, is the owner of the piece of land within the territory of the respondent, the town of Val‑Bélair, where he operates a business selling retail automobile parts as well as repairing radiators and gas tanks. This type of business is commonly known as a "scrap yard".
In 1983 it was decided to extend Boulevard Henri IV to Val‑Bélair. The appellant's business, which until then had been located on the outskirts, would now be located at the entrance to Val‑Bélair by Boulevard Henri IV.
As a consequence of these changes the respondent tried to purchase the appellant's immovable property together with other adjoining properties by mutual agreement. In early 1987 it gave a real estate firm a mandate to do this. The firm was able to buy the property adjoining that of the appellant, which was used for a similar business. On February 25, 1987 the appellant refused an offer to purchase his property.
On July 23, 1987 the respondent adopted a resolution authorizing expropriation of the appellant's immovable property, a resolution which reads as follows:
[translation] Resolution No. 87‑7166: Mandate ‑‑ Flynn, Rivard & Associés law firm ‑‑ Land expropriation ‑‑ Avenue Industrielle.
Whereas the municipal council must acquire the necessary immovable property for a land reserve;
Councillor Claude Beaupré proposes, seconded by Councillor Roger Naud,
THAT the preceding preamble be an integral part hereof;
THAT the municipal council authorize expropriation of the immovable property owned by J. Alexandre Leiriao and located at 2020 avenue Industrielle, Val‑Bélair, known and designated as lot No. 442‑1 of the official cadastre of the parish of Saint‑Ambroise‑de‑la‑Jeune‑Lorette, the whole pursuant to the provisions of the Cities and Towns Act and the Expropriation Act, R.S.Q., c. E‑24;
THAT the municipal council give the law firm Flynn, Rivard & Associés a mandate to take the necessary steps to expropriate this property.
On August 7, 1987 a notice of expropriation was served on the appellant:
[translation] TO THE EXPROPRIATED PARTY:
1.PLEASE BE ADVISED that, pursuant to resolution No. 87‑7166 adopted on July 23, 1987, the town of Val‑Bélair is expropriating the following lot in the official cadastre of the parish of St‑Ambroise de la Jeune Lorette, Québec Registration Division, hereinafter described and owned by you:
[description of property follows]
2.the town of Val‑Bélair is expropriating the aforementioned immovable property for purposes of a land reserve;
[the following paragraphs set out the expropriated party's rights and obligations and an appendix concerning lessees of the property].
The appellant challenged the respondent's right to expropriate in the Superior Court, in accordance with the procedure provided by s. 44 of the Expropriation Act, R.S.Q., c. E‑24 (hereinafter "E.A."). The Superior Court allowed his application and quashed the resolution and the notice of expropriation. The respondent appealed to the Court of Appeal, which allowed the appeal, dismissing the appellant's objection. The appellant appealed to this Court.
II ‑ Applicable Legislation
Applicable Legislation
Certain legislative provisions which are fundamental to the case follow:
Cities and Towns Act
29.4 A corporation may own immovables for the purposes of a land reserve.
- The council may, by complying with the provisions of sections 571 and 572 and the expropriation procedure established by law,
(c) expropriate any immoveable property, any part thereof or any servitude it may need for any municipal purpose, including the parking of motor vehicles.
The foregoing provisions of this section shall not be regarded as restricting the right which the council may otherwise have to acquire, by mutual agreement, immoveables for the same purposes.
- Expropriation proceedings commence by service, on the owner of the immovable or the holder of the immovable real right to be expropriated, of a notice of expropriation containing the following particulars:
(2) a precise statement of the purposes of the expropriation;
III ‑ Decisions of Courts Below
Superior Court, [1988] R.J.Q. 757
Decisions of Courts Below
Larue J. defined a land reserve as [translation] "a bank of land the use of which is not yet known" (p. 759). As s. 29.4 C.T.A. deals only with ownership, the basis for a power to expropriate to create a land reserve must be sought elsewhere.
According to Larue J., s. 570 C.T.A., which gives a council a general power of expropriation, must be strictly construed in so far as the expropriation deprives the taxpayer of enjoyment of his property. Thus the expression "municipal purpose" in s. 570 must be limited to the public services which the C.T.A. makes the municipality responsible for, and this excludes the creation of land reserves.
Larue J. was also of the view that simply mentioning "for purposes of a land reserve" in the notice of expropriation did not meet the requirements of s. 40(2) E.A., as the owner was unable to determine the town's true intentions.
Court of Appeal, 1989 CanLII 1177 (QC CA), [1989] R.J.Q. 2668
Mailhot J.A.
Mailhot J.A. did not share the opinion of Larue J. She considered that the adding of s. 29.4 C.T.A. in 1985 created a new municipal purpose and that the power of expropriation in s. 570 C.T.A. necessarily applies to this.
She saw s. 28.1 C.T.A., which is put forward as an example of a comparable power but expressly accompanied by a power to expropriate, as an exceptional power, which requires express mention of a power to acquire by expropriation in s. 28.2. The acquisition of immovable property in connection with a special planning program for the downtown area, with a view to resale, goes beyond municipal purposes.
She also examined the series of private Acts which have given several Quebec cities and towns a power of expropriation so they can create land reserves. She concluded that the legislature could not have intended to deprive the other cities and towns falling under the general scheme of the C.T.A. of this power.
It follows from this conclusion that the reference contained in the notice of expropriation is sufficient so far as the E.A. is concerned, as the creation of land reserves is a municipal purpose.
Gendreau J.A.
Gendreau J.A. concurred in the opinion of Mailhot J.A. that the creation of land reserves is a municipal purpose. On the question of whether the notice of expropriation was sufficient, he added at pp. 2673‑74:
[translation] The creation of a land reserve is allowed, it is a municipal purpose and it may therefore be done by expropriation. Requiring the specific and ultimate purpose for which the expropriated immovable will be used as a reserve to be immediately stated amounts to concluding that it is not a municipal purpose. If the municipality's intention must be specified, what purpose will be served by creating a land bank for an as yet undefined use?
Chouinard J.A., dissenting
Chouinard J.A. considered that the power to expropriate should be strictly construed, and that it [translation] "can only be justified on grounds of public interest, in this case, a genuinely municipal purpose" (p. 2670). Section 29.4 C.T.A. confers no power to expropriate. It does not create a municipal purpose. In Chouinard J.A.'s view, [translation] "the right to own immovable property for purposes of a land reserve can only be an incidental purpose, which must be related to some other genuinely municipal purpose or to the public interest" (p. 2670). He included among these "genuinely municipal" purposes the functions usually assigned to municipalities, such as policing, fire protection, recreation, planning, zoning and even housing, among others. The powers to expropriate for land reserves given to various cities and towns by private Acts are special cases, which cannot be used as a basis for interpreting the C.T.A.
The interpretation adopted by the majority, in Chouinard J.A.'s view, would give municipalities a greater power to expropriate than the province. In so far as s. 40(2) E.A., which adopts the principles of the Civil Code and the Charter of Human Rights and Freedoms, R.S.Q., c. C‑12, requires a precise statement of the purposes of the expropriation, merely mentioning the creation of a land reserve cannot suffice. The judge relied on Société Inter‑Port de Québec v. Société immobilière Irving Ltée (1986), 1986 CanLII 3910 (QC CA), 37 L.C.R. 30, [1987] R.D.J. 1, in which the Court of Appeal had quashed a notice of expropriation because the reasons stated in it were not clear enough.
Chouinard J.A. thought the use of expropriation "for purposes of a land reserve" when attempts to purchase by mutual agreement had failed was improper. The town's real intentions had not been disclosed.
IV ‑ Issues
Issues
This appeal raises three issues:
1.Does the C.T.A. give municipalities a power to expropriate for purposes of a land reserve?
2.Does the phrase "for purposes of a land reserve" contained in the notice of expropriation meet the requirements of s. 40(2) E.A.?
3.Was resolution 87‑7166 sufficient to authorize the expropriation?
V ‑ Power to Expropriate for Purposes of a Land Reserve
Power to Expropriate for Purposes of a Land Reserve
The land reserve is a relatively recent addition to Quebec law. It has not been defined by the legislature, but the courts have agreed that a land reserve is [translation] "a land bank the purpose of which is by definition unspecified at the time it is created", to use the language of Gendreau J.A. at p. 2673 of the judgment a quo. I adopt this definition.
A. Introduction of Land Reserves into Quebec Law
Introduction of Land Reserves into Quebec Law
A whole series of private Acts was adopted by the National Assembly between 1973 and 1984 to allow some thirty Quebec cities and towns to set up land reserves. Their provisions are much the same. It will suffice here to review the opening of art. 964b. of the Charter of the City of Montreal, 1960, S.Q. 1959‑60, c. 102, the first of its kind, which was inserted by the Act to amend the Charter of the City of Montreal and the Montreal Urban Community Act, S.Q. 1973, c. 77:
964b. Notwithstanding any act to the contrary, the city is authorized to acquire by agreement or expropriation, any immoveable whose acquisition is considered appropriate for real estate reserves or housing and for the works related to such purposes, and any immoveable considered obsolete or harmful for occupation.
Most of the private Acts subsequently followed the same model, which corresponded largely to that in the Charter of the City of Montreal, 1960. As an example, the Act to amend the Charter of the City of Granby, S.Q. 1984, c. 59, contained this section:
- The city is authorized to acquire by agreement or expropriation any immovable the acquisition of which is considered appropriate for land bank or housing purposes and for works related to such purposes, and any immovable that is obsolete or unfit for occupancy.
The governing legislation itself was amended by the Act to amend various legislation respecting municipalities, S.Q. 1985, c. 27 (hereinafter the "1985 Act"), which added s. 29.4 to the C.T.A., among other amendments. There is therefore no doubt that the legislature intended all cities and towns to be able to have land reserves, a fact that should be borne in mind in resolving this matter.
Section 29.4 C.T.A. differs in certain respects from the standard sections in private Acts. The most important is undoubtedly that s. 29.4 C.T.A. refers only to ownership, whereas the private Acts allow acquisition for purposes of a land reserve, and specify that this may be by mutual agreement or by expropriation. The way in which immovable property intended to form a land reserve may be acquired must accordingly be sought elsewhere in the C.T.A.
B.Ways of Acquiring Immovable Property for Land Reserves
Ways of Acquiring Immovable Property for Land Reserves
Cities and towns have a general power of acquisition by mutual agreement, contained in s. 28(1)(2) C.T.A.:
- (1) Such corporation, under its corporate name, shall have perpetual succession, and may:
(2) Acquire for the objects within its competence movable and immovable property by purchase, donation, devise or otherwise;
This power is one of the main powers of cities and towns, which they have long enjoyed. The wording of this paragraph has not changed materially since the adoption in 1922 of the Cities and Towns' Act, 1922, S.Q. 1922, 13 Geo. 5, c. 65. Neither the decided cases nor the parties dispute that a town can purchase immovable property for a land reserve by agreement.
The general powers of cities and towns to acquire by expropriation are contained in s. 570 C.T.A. This again is a power which has always been recognized, though its limits have changed with time. In its present form, s. 570 C.T.A. dates from the Act to amend the Cities and Towns Act, S.Q. 1959‑60, c. 76, and has not been amended since.
I consider that s. 570 C.T.A. allows municipalities to expropriate for purposes of a land reserve, as this interpretation is most consistent with the scheme of the legislation and intent of the legislature, and gives s. 29.4 C.T.A. its full meaning. My conclusion is also consistent with the trends in Quebec decisions (see Belcourt Inc. v. Saint‑Laurent (Ville), [1990] R.J.Q. 1122 (Sup. Ct.); Belcourt Inc. v. Kirkland (Ville), Sup. Ct. Montréal, No. 500‑05‑010994‑885, November 3, 1989, J.E. 90‑91; Collins v. Laval (Ville), Sup. Ct. Montréal, No. 500‑05‑001920‑881, May 3, 1989, J.E. 89‑899; and 117080 Canada Ltd. v. Longueuil (City) (1988), 1988 CanLII 5700 (QC CS), 39 L.C.R. 342, [1988] R.J.Q. 538 (Sup. Ct.)).
The brief review of Quebec land reserve legislation given above indicates that the legislature has always specified in private Acts the methods by which immovable property can be acquired for a land reserve, including expropriation.
Section 14 of the 1985 Act appears to have been intended to give all cities and towns the powers which some of them had to create land reserves. In the three years preceding the adoption of this Act, no less than 16 private Acts were adopted in this regard. Clearly, the National Assembly thought it better to amend the C.T.A. once and for all rather than continuing to adopt single private Acts.
However, the way in which the 1985 Act is drafted differs from that of the private Acts. While the latter conferred a power to acquire immovables, the 1985 Act gives a power of ownership. The legislature accordingly relied on the general powers of acquisition contained elsewhere in the C.T.A. instead of specifying how land reserves are to be acquired. Sections 28(1)(2) and 570 C.T.A. provide a sufficient framework for the acquisition of immovable property as a land reserve and there was no need to add anything to them. All cities and towns thus have the same powers regarding land reserves, though the actual wording may vary from one type of statute to another.
I cannot conclude in this connection that the legislature intended in the 1985 Act to create two classes of cities and towns: those holding their power to set up land reserves under a private Act, which could then expropriate for this purpose, and on the other hand those holding it under the C.T.A., which could only acquire immovable property for their reserves by mutual agreement.
The creation of land reserves must also be distinguished from the acquiring of immovable property under a special planning program, which is the subject of ss. 28.1 to 28.4 C.T.A. Only ss. 28.1 and 28.2 are relevant here:
28.1 Where a special planning program for that part of the territory of a municipality designated as the "centre" of the city or town and planning by‑laws consistent with the program are in force in a municipality, the municipality may carry out any program of acquisition of immovables provided for in the special planning program in view of alienating or leasing the immovables for purposes contemplated in the program.
The municipality may also acquire any immovable situated in that part of its territory designated as the "centre" of the city or town even if the acquisition is not provided for in a program of acquisition of immovables, in view of alienating or leasing it to a person who requires it to carry out a project that is consistent with the special planning program . . .
28.2 For the purposes of section 28.1, the municipality may, in particular,
(1)acquire an immovable by agreement or by expropriation;
These two sections were cited in the Court of Appeal and in this Court as an example of an expressly conferred power to expropriate. The appellant argued that, by contrast, the absence of any such reference in s. 29.4 C.T.A. meant that the creation of land reserves cannot be done by expropriation.
Sections 28.1 C.T.A. et seq. must be read together with s. 85 of the Act respecting land use planning and development, R.S.Q., c. A‑19.1, which was amended in the same legislative reform, namely the Act to amend legislative provisions concerning municipalities, S.Q. 1983, c. 57. This Act had added the following paragraph at the end of s. 85, which deals with special planning programs:
A special planning program applicable to that part of the territory of the municipality designated as the "centre" or "central sector" of the city or town may also include a program of acquisition of immovables in view of alienating or leasing them for purposes contemplated in the special planning program.
The effect of these sections is to create a new role for cities and towns, that of a land developer or promoter; however, it does so within a limited framework and for special purposes. Whereas traditionally they have not been involved in the real estate market, the legislature has authorized them to enter the market when it is necessary to implement a special planning program affecting the downtown area. This exceptional power requires express mention of a power of acquisition and how it is to be exercised, whether by agreement or by expropriation, as it falls outside general municipal purposes: the acquisition is made for the purpose of resale or leasing, and what is more, those operations can be carried out for the benefit of third parties, as provided in the second paragraph of s. 28.1 C.T.A. Sections 28.1 to 28.4 C.T.A. really set up a special legislative program, which needed to be precisely defined.
On the other hand, the creation of land reserves does not transform municipalities into entrepreneurs. Apart from the general and indeterminate nature of the municipal purpose, it does not differ from any others.
However, the appellant argues that s. 29.4 C.T.A. deals with ownership of immovable property "for the purposes of a land reserve", while s. 570(c) C.T.A. makes the expropriation applicable "for any municipal purpose", and that a distinction must thus be made between these two phrases, the first not being included in the second.
In the Court of Appeal Chouinard J.A. made this distinction when he wrote, at p. 2670:
[translation] Section 570, which deals with the municipal corporation's right of expropriation, limits it to "any municipal purpose". Though there is no specific definition of this term, it can only refer to areas of activity specifically assigned to municipal corporations in the interests of a community [a list of such purposes follows]. However, such purposes were always related to the interests of the community. From this point of view, the right to own immovable property for purposes of a land reserve can only be an incidental purpose, which must be related to some other genuinely municipal purpose or to the public interest.
With all due respect for the opinion of Chouinard J.A., the distinction he makes between "incidental purposes" and "genuinely municipal purposes" adds to the C.T.A. a distinction which it does not make and essentially deprives land reserves of all practical usefulness.
The teleological hierarchy proposed by Chouinard J.A. exists in French law, but is not contained in the C.T.A. The French Code de l'urbanisme limits the scope of land reserves in arts. L. 222‑1 and L. 300‑1:
[translation] L. 222‑1 The government, local communities or groupings of the same for this purpose, joint associations and the public planning bodies mentioned in art. L. 321‑1 shall be empowered to acquire immovable property, by expropriation if necessary, in order to create land reserves for the purpose of carrying out a planning operation meeting the purposes defined in art. L. 300‑1.
L. 300‑1 The purposes of planning actions or operations shall be to implement a local housing policy, to organize the continuance, expansion or reception of economic activities, to encourage the development of recreation and tourism, to provide community facilities, to combat insanitary conditions and to preserve or develop the national heritage, built or otherwise, and natural spaces.
The creation of land reserves in France must therefore be for certain specific purposes, or it will be quashed on the ground of absence of public utility (Cons. d'État, May 8, 1981, Ministre de l'Intérieur v. Parvau, Rec. Cons. d'Ét., p. 770). The C.T.A. contains no provision comparable to these articles that could form a basis for the proposed hierarchy.
This distinction does not take into account the special nature of the land reserve. If land reserves, in order to be created by expropriation, must be connected to another municipal purpose, then there is no need to make provision for an "expropriation in order to establish a land reserve", since the expropriation could just as easily be based on the ultimate purpose for which the land reserve is intended. What distinguishes land reserves is the very fact that the ultimate purpose for which they are intended is indeterminate when they are created. Not only does the distinction between "incidental purposes" and "genuinely municipal purposes" limit the use of expropriation to create land reserves, it deprives it of all meaning.
This distinction also appears to me to be inconsistent with the provisions governing a city or town's right to acquire immovable property by agreement, a right which is not in dispute. It is based on s. 28(1)(2) C.T.A., which limits this power to "objects within its competence". The creation of land reserves would thus be an "object within the competence of a city or town" within the meaning of s. 28 C.T.A., but not a "municipal purpose" within the meaning of s. 570 of the same Act. It can hardly be said that "objects within the competence of a city or town" is not synonymous with "municipal purpose" in the C.T.A.
The creation of distinctions which unduly complicate the application of legislation should be avoided. Land reserves are a municipal purpose, as s. 29.4 C.T.A. indicates. That is sufficient to permit the acquisition of immovable property to create a land reserve to be done using the general powers of acquisition, by mutual agreement or by expropriation, contained in the C.T.A.
VI ‑The Phrase "for purposes of a land reserve" and the Expropriation Act
A.The Expropriation Act and the Cities and Towns Act
Section 40 E.A. requires in subpara. (2) that the notice of expropriation contain a "precise statement of the purposes of the expropriation". The appellant argues that simply mentioning "for purposes of a land reserve" in the notice of expropriation referred to above does not meet the requirements of the E.A. He relies in support of his argument on the judgment of the Superior Court and the dissent by Chouinard J.A. in the case at bar, as well as Hamelin v. Laval (Ville), Sup. Ct. Montréal, No. 500‑34‑000988‑871, May 25, 1988, J.E. 88‑923.
The E.A. is essentially a procedural statute. It sets out the respective powers of the Superior Court and the Expropriation Division of the Court of Quebec, it governs the procedure to be used in expropriation and it does the same for reserves for public purposes. Only a few sections of Title III, on reserves, relate to substantive rights. It is not insignificant that s. 40, relied on here, is to be found in Chapter I of Title II of the E.A., the title of which is "Expropriation Procedure". Section 35 E.A. indicates the scope of the provisions of Title II of the E.A.:
- This title applies to all expropriations authorized by the laws of Québec and prevails over the inconsistent provisions of any general law or special act.
Although the final words of this section give the E.A. a certain primacy, one has also to look at the beginning of the provision, which refers to other Quebec legislation to determine whether the right to expropriate exists. The E.A. only applies once the right to expropriate has been established. It then governs how that right will be exercised. As G. Dorion and R. Savard mention in their text Loi commentée de l'expropriation du Québec (1979), at pp. 112 et seq., the E.A. was meant to standardize the disparate expropriation procedures then in effect in Quebec. It is therefore not a statute dealing with the right to expropriate, which is to be found in other legislation.
As the E.A. remains a procedural statute, it must not be construed so as to limit the scope of Acts dealing with the substance of rights. This proposition is succinctly expressed in Maxwell on the Interpretation of Statutes (12th ed. 1969), at p. 118:
. . . statutes dealing with procedure should, where possible, be limited in their construction to procedure only.
This is only a specific case of the general principle regarding the relationship between procedure and substantive law, a guiding principle to be found in art. 2 of the Code of Civil Procedure, R.S.Q., c. C‑25:
- The rules of procedure in this Code are intended to render effective the substantive law and to ensure that it is carried out . . . .
The appellant's argument amounts to using the provisions of a statute dealing with procedure, the E.A., to limit a right conferred in broad terms by the statute dealing with the substance of the right, namely the C.T.A. Procedure then becomes the master of the right, instead of its servant.
I subscribe to the view taken by Mailhot J.A. in the Court of Appeal, who considered that since the creation of a land reserve is a municipal purpose, it follows that the phrase "for purposes of a land reserve" is sufficiently precise. In Bédard v. Québec (Ville) (1988), 21 Q.A.C. 189, the Court of Appeal also came to the same conclusion with respect to the provisions of the Charter of the City of Quebec which are equivalent to s. 29.4 C.T.A. By definition, a land reserve is created without the ultimate use of the immovable property it comprises being known. The statement of the purposes of the expropriation cannot be any more precise than it was in the case at bar, without depriving land reserves of this open‑endedness which is their special characteristic.
Land reserves must be distinguished in this regard from other grounds of expropriation. The judgment of the Court of Appeal in Société Inter‑Port de Québec v. Société immobilière Irving Ltée, supra, cited in support of a broad interpretation of s. 40 E.A., involved s. 4 of the Act respecting the Société Inter‑Port de Québec, R.S.Q., c. S‑18:
4. The objects of the Société are:
(a) to prepare plans and programs for the establishment in the zone described in the schedule, of an industrial complex susceptible of benefiting by the advantages provided by the infrastructure of the port of Québec and of contributing to the development of that port;
(b) to carry out the work required to implement the plans and programs so prepared, and to engage in industry, trade and other business that may contribute to the development of the industrial complex.
Section 5 gave the Société powers of expropriation. The Court of Appeal held that mentioning [translation] "for the purpose of establishing an industrial complex" in the notice of expropriation did not meet the requirements of s. 40 E.A. In that case, the powers of the Société were in no way affected when the court required it to provide further details about the purposes of the expropriation. The Court of Appeal did not fail to note this aspect at p. 35-36 L.C.R. of its judgment. On the other hand, when expropriation for a land reserve is in question, any details in addition to the notice of expropriation would make the exercise by the city or town of the power conferred on it by s. 29.4 C.T.A. illusory.
The phrase "for purposes of a land reserve" thus meets the requirements of s. 40(2) E.A. There is no basis for using a procedural statute to limit a substantive right conferred by some other legislation.
B. Control of Expropriations for Land Reserves
Control of Expropriations for Land Reserves
One of the themes underlying the appellant's argument, the trial judgment and the dissent in the Court of Appeal remains the concern to avoid abuses of power in creating land reserves. It should be noted in passing that the appellant never questioned the respondent's good faith in this Court.
Where an abuse exists, there are other remedies by which the expropriated party can establish that the expropriation for a land reserve is invalid. I can only cite with approval the reasons of Tourigny J.A. in Bédard v. Québec (Ville), supra, where she wrote at p. 192:
[translation] Saying that the City can expropriate simply to create land reserves certainly does not mean that these words are a magic formula against which any expropriated party is powerless. Personally, I have no doubt that if under cover of a land reserve an expropriation was made for reasons contrary to the interests of the public as a whole, in order to benefit individuals who lack a power to expropriate, or simply made in bad faith, the expropriated party would be able, despite the general language used, to allege and prove the real reasons for the expropriation. Here, however, nothing of that kind is alleged or even suggested in any way.
This passage applies equally to the case at bar. This Court has in the past had occasion to invalidate expropriations made in bad faith, in Landreville v. Town of Boucherville, 1978 CanLII 202 (SCC), [1978] 2 S.C.R. 801, for example: however, bad faith must be alleged and proven.
VII ‑ The Adequacy of Resolution 87‑7166
The Adequacy of Resolution 87‑7166
The appellant alleges that resolution 87‑7166 should have been included in a land reserve by‑law by the respondent, and that the terms of resolution 87‑7166 are so vague and general that the town has simply restated the terms of its delegated power, without really exercising it.
A. Method of Decision
Method of Decision
In Air Canada v. City of Dorval, 1985 CanLII 40 (SCC), [1985] 1 S.C.R. 861, this Court held that where there is no legislation as to the way in which the municipality may express its decision, a resolution is a valid method of decision. Section 570 C.T.A. does not specify whether the expropriation must be made by by‑law or by resolution, and accordingly resolution 87‑7166 was an adequate means of deciding on the expropriation.
B. Exercise of Delegated Power
Exercise of Delegated Power
Once again, the appellant bases his argument on the need for the land reserve to be further defined. I have already mentioned that, by definition, the purpose of land reserves is not determined at the time when they are created. If the respondent had had to provide more details than were given in the case at bar, the power to create land reserves conferred on it by s. 29.4 C.T.A. would be of no use to it. When a city or town decides to expropriate to create a land reserve, the use it will make of the immovable property expropriated is not definite, and it cannot say more in the resolution authorizing the expropriation or in the notice of expropriation than what it already knows itself.
Brant Dairy Co. v. Milk Commission of Ontario, 1972 CanLII 11 (SCC), [1973] S.C.R. 131, relied on by the appellant, is not applicable. This is not a case in which, to use the words of Laskin J. at p. 146, a statutory body had exercised its powers "by simply repeating the power in a regulation in the words in which it was conferred". The respondent received the power to expropriate for a land reserve pursuant to ss. 29.4 and 570 C.T.A. It exercised it by resolution 87‑7166. It did not try to give itself a power to expropriate for a land reserve, which would have been contrary to Brant Dairy, supra: it simply carried out an expropriation in accordance with the C.T.A.
The respondent correctly exercised the powers given to it by the C.T.A. by adopting resolution 87‑7166, and this resolution is sufficient to expropriate the appellant's immovable property.
VIII ‑ Conclusion
Conclusion
For these reasons, I would dismiss this appeal with costs.
Appeal dismissed with costs, Lamer C.J. and La Forest and L'Heureux‑Dubé JJ. dissenting.
Solicitor for the appellant: Michel Bouchard, Val‑Bélair.
Solicitors for the respondent: Flynn, Rivard, Québec.