National Capital Commission (Plaintiff)
v.
Gertrude Lapointe and The Guaranty Trust
Company of Canada (Defendants)
Trial Division, Noël A.C.J.—Ottawa, June 5 and
9, 1972.
Expropriation—Civil rights—Whether expropriation is by
"due process of law"—Canadian Bill of Rights, s. 1(a).
The right to expropriate land without any challenge as to
the expropriator's good faith is clearly authorized by section
12 of the Expropriation Act, R.S.C. 1952, c. 106, and
accordingly the deprivation of the expropriated party is by
"due process of law" as required by section 1(a) of the
Canadian Bill of Rights. The expression "due process of
law" means the existing law governing the rights of the
owner and also includes the holding of a hearing where the
principles of fundamental justice will be applied, which will
be provided in this case by an expropriation action in this
Court.
The King v. Toronto [1946] Ex.C.R. 424, referred to.
MOTION.
E. M. Thomas, Q.C. and J. P. Fortin for
plaintiff.
A. Roy for defendants.
NOEL A.C.J.—In her defence plea defendant
Gertrude Lapointe alleges that the expropria
tion carried out by the National Capital Com
mission is invalid because it was based on a
statute which infringes the Canadian Bill of
Rights. Indeed, at the start of the hearing of this
case her counsel submitted that under section
13 of the National Capital Act, R.S.C. 1970, c.
N-3, plaintiff was able, with the approval of the
Governor in Council, to acquire land by expro
priation under the Expropriation Act, R.S.C.
1952, c. 106, which he calls the old statute,
without the owner's consent and even without
giving him notice of this acquisition. In fact, it
is sufficient under that Act to deposit a plan and
description of the land expropriated in the Reg
istry Office, and as of this depositing the expro
priating party becomes the owner, and any
claim to or encumbrance upon such land or
property is converted, as respects the expro
priating party, into a claim to the compensation
money or to a proportionate part thereof. He
stated that the owner cannot contest the
Crown's right to take or acquire the land or
property, and he added further that the expro
priated party may be left in a state of uncertain
ty, since no time was set for payment of the
compensation. He submitted that the parts of
the old statute which are contrary to the
Canadian Bill of Rights are, first, that (1) there
is no provision for notice of expropriation; (2)
an owner or tenant may not legally object to
acquisition of his property, and is even required
to consent before receiving compensation; (3)
the expropriating party may arbitrarily signify
in writing to the expropriated party after the
property is acquired that his land or property is
no longer required, and registration of a surren
der document will return such property to its
owner; (4) there is no established negotiation
procedure to facilitate settlement of disputes
over the amount of compensation; and lastly,
(5) interest on the unpaid amount of compensa
tion is set at only five per cent.
Counsel for the defendant contends that all
these points are in violation of certain sections
of the Canadian Bill of Rights, namely section
1(a), which deals with the right of the individual
to ... enjoyment of property, and the right not
to be deprived thereof except by due process of
law, and section 2(e) which deals with depriving
... of the right to a fair hearing in accordance
with the principles of fundamental justice for
the determination of his rights and obligations.
He submits further that this Act containing
the Canadian Bill of Rights applies to the
Expropriation Act, because section 5(2) of the
Canadian Bill of Rights states clearly that the
expression "law of Canada" means "an Act of
the Parliament of Canada enacted before or
after the coming into force of this Act", and he
adds that there is nothing in the Expropriation
Act which states that it shall apply notwith
standing the Canadian Bill of Rights. In the
submission of counsel for the defendant the
latter Act protects the individual in the enjoy
ment of his property, ensures that he will not be
deprived of his property without due process of
law, and will always be entitled to a fair hearing
of his case.
It is undoubtedly true that section 12 of the
Expropriation Act does not permit the expro
priated party to question the good faith of the
Minister or the person who has decided on the
expropriation of any property for purposes of a
public work. See The King v. City of Toronto
[1946] Ex.C.R. 424, where in summation it is
said, at page 431, that:
Section 12 provides that the deposit of the plan and
description shall be deemed and taken to have been deposit
ed by the direction and authority of the Minister, and
indicating that in his judgment the land therein described is
necessary for the purposes of the public work, and that the
said plan and description shall not be called in question
except by the Minister.
And at page 432 it is stated that:
Having done what he was expressly authorized to do by
Parliament, it cannot be said that he (the Minister) did not
act in good faith. That being so his judgment is not open to
review by the Court by reason of Section 12.
Although this power was one which could be
described as arbitrary, the legislator clearly
gave the Minister, or the person authorized to
decide on expropriation, the right to act in this
way, and this power is exercised by the due
process of law spoken of in section 1(a) of the
Canadian Bill of Rights. Accordingly it is not
true to say that the fact the expropriated party
is unable to challenge the good faith of the
person who decided on the expropriation for
purposes of public works contravenes the
Canadian Bill of Rights.
Moreover, I feel that although, since the date
on which defendant's property was expropriat
ed, the National Capital Commission has still
not carried out the work to construct an exten
sion of the existing road along the Ottawa
River, namely the Ottawa River Parkway, as
stated in the Order in Council of February 12,
1963, this is clearly a public work, though the
delay in carrying out such work may have given
the expropriated parties the impression it would
only be completed in the distant future, or poss
ibly never.
The old Expropriation Act undoubtedly gives
the expropriating party certain rights which may
be regarded as arbitrary, and the new Expro
priation Act (18-19 Eliz. II, c. 41) sought to
remedy certain aspects of that Act. It is never
theless true, however, as we have seen, that the
Expropriation Act authorizes plaintiff to act as
it did, and does not contravene the Canadian
Bill of Rights. In fact, the right which the
individual possesses "to enjoyment of property
and the right not to be deprived thereof" except
by due process of law, means, I feel, that this
right may only be withdrawn from him by the
law existing or in force. The expropriation of
property must, however, be carried out by a
reasonable procedure, for a purpose which may
be regarded as the public interest, and the
owner is to recover compensation, the amount
of which must be fairly arrived at after a hear
ing. The expression "due process of law", or in
French "application régulière de la loi", in the
present case at least, means the existing law
governing the rights of any owner of expropriat
ed property, but should also include the holding
of a hearing in which the principles of funda
mental justice recognized by our legal system
would be applied. The word "law" here means
not only the law to be found in the statutes, but
is also used in its abstract or general sense, and
includes what are known as the principles of
natural justice.
It appears to me, then, that the Expropriation
Act under which the National Capital Commis
sion acquired the defendant's land and property
is a law adopted by the Parliament of Canada,
that the purpose of such acquisition was for
public works, and that although the procedure
established might be regarded as arbitrary in
certain respects, it nonetheless constitutes not
only for defendant but for all who have been
divested of their land and property, the due
process of the law. Moreover, the proceedings
to be taken in the circumstances, namely the
action which is now before this Court, also
constitutes for defendant a fair hearing of her
claim, and must and will be conducted, in so far
as this Court is concerned, according to the
principles of justice necessary to define the
rights and obligations of the parties. The expro
priation procedure carried out by the Commis
sion, which involves no discrimination, is
accordingly valid. The National Capital Act,
R.S.C. 1970, c. N-3, and by reference the
Expropriation Act, R.S.C. 1952, c. 106, in no
way contravenes the Canadian Bill of Rights. I
must accordingly dismiss defendant's motion,
and the hearing will be continued for the pur
pose of determining the compensation due to
the defendants; costs to follow.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.