T-2347-74
The Queen (Applicant)
v.
John Wesley Bolton (Respondent)
and
T-3749-74
The Queen (Applicant)
v.
Horst Kohne and Barbara Mable Kohne
(Respondents)
and
T-2351-74
The Queen (Applicant)
v.
Edgar J. Doucet (Respondent)
and
T-2356-74
The Queen (Applicant)
v.
Thomas A. Grayson (Respondent)
and
T-2346-74
The Queen (Applicant)
v.
Alfred Edinger and Dorothy Edinger (Respond-
ents)
and
T-3683-74
The Queen (Applicant)
v.
Gerald Timothy Miller and Marguerite Ritchie
Miller (Respondents)
Trial Division, Decary J.—Vancouver, November
26, 1974; Ottawa, January 14, 1975.
Expropriation—Lands vested in Crown—Former owners re
maining under agreement—Notices by Crown demanding
possession—Notices invalid—Warrants of possession
refused—Expropriation Act, R.S.C. 1970 c. 16 (1st Supp.) ss.
3, 12, 14, 15, 17, 24, 33, 35—Canadian Bill of Rights, R.S.C.
1970, App. III, s. 1.
Lands expropriated for the purpose of expanding Vancouver
airport became vested in the applicant on March 2, 1973. Each
of the respondents remained in occupation under an agreement
for the period ending July 31, 1974. Notices demanding physi
cal possession, dated July 1973, and April 1974, were served on
the respondent occupants by the Crown, which subsequently
moved for issuance of a warrant of possession.
Held, dismissing the motions, both of the notices failed to
comply with the Expropriation Act. The notice of July 1973,
that physical possession would be "taken" by the Crown was
invalid in failing to recite that the Crown "required" possession
as set out in section 17(1)(c)(i) of the Act. The notice was also
contradictory in demanding physical possession on November
1, 1973 and making an offer to the respondents to remain in
occupation until July 31, 1974. The notice of April 1974 was
not justified in declaring the Crown entitled to physical posses
sion in November 1973, since the notice of July 1973 was
invalid. The recital in the notice of April 1974 that the Crown
"required" the lands was in literal compliance with section
17(1)(c)(i). But the lands were not in fact "required" on the
relevant date, since the applicant was unable to obtain from
local authorities the consents necessary to begin the contem
plated operations on the lands. Both notices rendered meaning
less, or interfered with, the rights of the occupants regarding
the right to the assistance of the Minister in their relocation in
accordance with the provisions of section 24(5), (6) of the Act.
Counsel for respondents had stressed that due process of law
had not been followed, in that the Minister had failed to give
relocation assistance and had stopped negotiations as soon as
actions were instituted for additional compensation. Semble,
there may have been application of the Expropriation Act so as
to abrogate the respondents' rights to equality before the law
and to the enjoyment of property, contrary to section 1(a) and
(b) of the Canadian Bill of Rights.
MOTION.
COUNSEL:
R. Lutter for applicant.
W. Johnstone for respondents.
SOLICITORS:
Deputy Attorney General of Canada for
applicant.
Johnstone & Company, Richmond, B.C., for
respondents.
The following are the reasons for judgment
rendered in English by
DECARY J.: These six motions for the issuance
of a warrant pursuant to section 35 of the Expro
priation Act', to put the Minister of Public Works
in physical possession of the interests expropriated
were heard together and it was agreed that the
evidence was to be common.
The expropriated interests were absolutely
vested in Her Majesty the Queen, the applicant,
pursuant to the provisions of the Expropriation
Act on the 2nd day of March 1973 being the date
the notice of confirmation of the intention to
expropriate was registered in accordance with the
provisions of section 12(2) of the Expropriation
Act. The respondents not having challenged the
validity of the expropriation, it follows that the
public purpose for which the expropriation was
required is as indicated in the notice of intention to
expropriate: that is the expansion of the Vancouver
International Airport.
An offer of compensation based upon a written
appraisal--was made to each of the respondents
with the necessarystatements provided for in sec
tion 14(4) of the Act. The offer, in each instance,
was accepted. According to the provisions of sec
tion 15 of the Act the full amount of the compen
sation should have been paid forthwith upon the
acceptance of the offer but the evidence discloses
that such was not the case and that some months
intervened between the acceptance and the
payment.
Each respondent was party to an occupation
agreement extending the delay to occupy their
premises up to the end of July 1974 upon the
condition, inter alia, of paying the taxes and the
insurance premiums on the premises.
On July 26, 1973, a notice, purported to be
given pursuant to the provisions of section 17(1)(c)
of the Act, was sent to the respondents. The letter
reads as follows:
On the 2nd day of March, 1973, the Crown expropriated the
fee simple in the above-described lands, in which you held an
equity interest.
' R.S.C. 1970 (1st Supp.), c. 16.
PLEASE TAKE NOTICE that physical possession of the above-
described lands, as provided for in Section 17(1)(c) of the
Expropriation Act, will be taken by the Crown on and after the
1st day of November, 1973. Please take further notice that you
will be able to remain in occupancy after the 1st day of
November and until the 31st day of July, 1974, by the execu
tion of an Occupation Agreement between Her Majesty the
Queen in Right of Canada and yourself.
Section 17(1)(c)(i) reads as follows:
17. (1) Notwithstanding section 13, the Crown becomes
entitled to take physical possession or make use of any land to
which a notice of confirmation relates, to the extent of the
interest expropriated, only at such of the following times as is
applicable, namely:
(a) at the time of the registration of the notice of confirma
tion, if at that time no other person who was the owner of an
interest therein immediately before the registration of the
notice of confirmation is in occupation of the land;
(b) at such time, if any, after the registration of the notice of
confirmation as physical possession or use of the land to the
extent of the interest expropriated is given up to the Crown
without any notice under paragraph (e) having been sent to
the persons described in that paragraph; or
(c) in any other case, at such time after the registration of
the notice of confirmation as
(i) the Minister has sent a notice to each of the persons
appearing to have had any right, estate or interest therein
at the time of the registration of the notice of confirma
tion, so far as the Attorney General of Canada has been
able to ascertain them, or, where an application has been
made under section 16 and has been finally disposed of, to
each of the persons adjudged to have had an interest
therein immediately before the registration of the notice of
confirmation, that such physical possession or use is
required by the Crown on and after the expiration of such
period as is specified in the notice, being not less than
ninety days after the sending of the notice to each of those
persons, and either that period has expired or such physical
possession or use has been given up to the Crown before
the expiration of that period, and ....
In view of the provisions of section 17(1)(c)(i)
of the Act I do not believe that it is sufficient to
state that physical possession shall be taken in
order that the applicant be entitled to take physi
cal possession. Indeed the provisions state that a
notice shall be sent stating that the physical
possession is required. The provisions of section 3
of the Act grant the power to expropriate when
interest in land is required by the Crown for public
work or other public purpose. The criterion for
enabling the applicant to expropriate is not for any
kind of purpose but only one for public work or
other public purpose. After the registration of the
notice of confirmation of the intention, the appli
cant owns the interest expropriated but is not, then
and there, entitled to the physical possession of the
interest. The provisions of section 17(1) read in
part as follows:
17. (1) Notwithstanding section 13, the Crown becomes
entitled to take physical possession ... only at such of the
following times as is applicable, namely:
The entitlement to take physical possession is
determinable: it arises only at the times set forth in
the said provisions. There being occupation of the
premises and no giving up of the interest, the times
set forth at paragraphs (a) and (b) of section
17(1) do not apply. In the present instance, the
applicant becomes entitled to take physical posses
sion at no other time than the one specified at
subparagraph (1)(c)(i) of section 17 which reads,
in part, as follows:
17. (1) ...
(c) . . .
(i) The Minister has sent a notice ... that such physical
possession or use is required by the Crown on and after the
expiration of such period as is specified in the notice, being
not less than ninety days after the sending of the notice to
each of those persons, and ....
The applicant, under the provisions of section
17(1)(c)(i) becomes entitled to take physical
possession at the expiration of 90 days or more as
set forth in the notice if such physical possession is
required "on or after the expiration of such period
as is specified in the notice". The physical posses
sion has to be required by the applicant not less
than 90 days after sending the notice. If it is
specified that the taking of possession can be done
on or after the expiration of the period specified in
the notice, it must mean that it cannot be done
before.
I consider that the notice has to be specific in
order to comply with the provisions of section
17(1)(c)(i) of the Act and, therefore, to be valid.
The notice of July 26, 1973 states, inter alia,
that:
(a) ... physical possession of the above-described lands, as
provided for in Section 17(1)(c) of the Expropriation Act,
will be taken by the Crown on and after the 1st day of
November, 1973.
(b) ... you will be able to remain in occupancy after the 1st
day of November and until the 31st day of July, 1974, by the
execution of an Occupation Agreement between Her Majesty
the Queen in Right of Canada and yourself.
That notice in my opinion does not comply with
the requirements of section 17(1)(c)(i): it does not
indicate that the physical possession is required, it
states only that physical possession shall be taken
on or after the 1st November 1973 and that the
addressee can remain in occupancy until the 31st
day of July 1974.
The provisions of that letter are contradictory:
physical possession to be taken on or after Novem-
ber 1st, 1973 and an offer to remain in occupancy
until July 31st, 1974. In other words, there is no
physical possession, be it required or not, before
August 1, 1974.
The notice, to be valid, must state that the
physical possession is required, not that it shall be
taken before being required, because the taking
before being required nullifies the right of the
expropriated party, under section 17(1)(c), not to
vacate before the date of expiration of the delay
specified in the notice that physical possession is
required. By the use of the word required, care has
been taken that the physical possession be not a
potestative condition wholly dependent upon the
will of the applicant.
Furthermore, such a construction would affect
not only the right not to vacate before the expira
tion of a specified period of time when the interest
is then or after required, but it would render the
provisions of section 24(6) of the Act meaningless
as that section determines, for establishing the
value therein referred to, the earlier of two points
in time for such valuation: the time of payment of
compensation for that interest or the time when
applicant becomes entitled to take physical
possession.
The provisions of section 24(6) read as follows:
24. (6) Where an expropriated interest was, immediately
before the registration of a notice of confirmation, being used
by the owner thereof for the purposes of his residence and the
value of the interest otherwise determined under this section is
less than the minimum amount sufficient to enable the owner,
at the earlier of
(a) the time of payment to him of any compensation in
respect of the interest, otherwise than pursuant to any offer
made to him under section 14, or
(b) the time when the Crown became entitled to take physi
cal possession or make use of the land to the extent of the
interest expropriated,
to relocate his residence in or on premises reasonably equivalent
to the premises expropriated, there shall be added to the value
of the interest otherwise determined under this section the
amount by which that minimum amount exceeds such value.
It is by meeting the conditions of section
17(1)(c) that the applicant becomes entitled to
take physical possession, and then, once entitled,
may take physical possession, after the expiry of
the delay, by resorting to a warrant for possession
as provided for in section 35 of the Act if the
previous owner has not vacated the expropriated
interest.
There is no specification in that notice that the
interest in land is required on a definite date, far
from it: it provides for an offer to remain in
occupancy. That offer implies that there is no
physical possession before the expiration of the
period of occupancy.
It is my considered opinion that the said notice
did not grant the applicant entitlement to take
possession on November 1, 1973 and still less to
exercise that right which arises only at the expira
tion of the period specified in a valid notice sent in
accordance with the requirements of section
17(1)(c)(i) of the Act.
On April 3, 1974 a document entitled: NOTICE
TO QUIT AND DEMAND FOR POSSESSION was sent
to the respondents:
Whereas title to the above lands and premises is vested in
Her Majesty the Queen in right of Canada and Her Majesty
became entitled to physical possession of the lands and prem
ises on the first day of November, 1973, and whereas you have
occupied the lands and premises as licencee from Her Majesty
from the date last mentioned on the terms and conditions set
forth in said occupation agreement:
Now, therefore take notice that:
1. Her Majesty requires physical possession of the lands and
premises on the first day of August, 1974;
2. Pursuant to the terms of said occupation agreement, said
licence to occupy expires on the first day of August, 1974;
and is hereby terminated effective as at the date last
mentioned;
3. You are hereby required to quit the lands and premises
and to yield up physical possession thereof to Her Majesty on
the first day of August, 1974.
In my opinion the statement in the first para
graph to the effect that the applicant "became
entitled to physical possession of the lands and
interests on the 1st of November 1973" is not
justified. It is only if the notice of July 26, 1973
had been valid pursuant to the provisions of section
17(1)(c)(i) that the applicant would have become
entitled to physical possession on the 1st of
November 1973. Furthermore, in view of the occu
pancy agreement the applicant was not entitled to
the physical possession unless a new notice was
sent that was valid under the provisions of section
17(1)(c)(i) of the Act.
That notice of April 3, 1974 states, in fact, that:
(a) applicant requires physical possession on the
1st of August, 1974,
(b) the occupation agreement is terminated as
of August 1st, 1974,
(c) respondent shall yield up physical possession
on August 1st, 1974.
If that second notice were valid, applicant
became entitled to take physical possession on
August 1st, 1974 and thereafter, the respondents
not having vacated the premises, to pray for the
issuance of a warrant for possession under the
provisions of section 35 of the Act.
One has to look at the meaning of the word
"requires" in the notice and "required" in the Act
at sections 17(1)(c)(i) and others.
That word "required" in the Act is found first in
the fundamental sections: section 3, giving the
Crown the right to expropriate and in section 4,
providing for the registration of the notice of
intention. In each instance the French version
reads «a besoin» for "required". In section 8(11)
the words "required" and «requis» are used for
urgent possession; so it is in section 17(1)(c)(i) and
17(2); in section 35(1) for a warrant for possession
"required" and «nécessaire» are used.
In A New Dictionary on Historical Principles
(1912) Oxford, Vol. VIII, "require" is defined:
... it requires, there is need for, it is necessary to have. Intr.:
To be requisite or necessary.
In Robert, Dictionnaire Alphabétique et Analo-
gique de la Langue Française, Vol. 1, we find:
Avoir besoin de quelqu'un ou de quelque chose: en ressentir la
nécessité....
Ibid. Vol. VI:
requis, ise, p.p., adj.: Demandé, exigé comme nécessaire.
It is my opinion that in the sections of the Act
mentioned earlier the words "required", "avoir
besoin" and "requis" imply the idea of a need, of a
necessity, d'un besoin, d'une nécessité. That is the
only meaning I shall ascribe to section 17(1)(c)(i)
of the Act in view of the sections reviewed and the
ordinary meaning of these words in dictionaries.
"Required" meaning needed, necessary, it fol
lows that a notice purported to have been sent
pursuant to the provisions of section 17(1)(c) may
or may not be valid depending upon whether or not
there is need or necessity for applicant to become
entitled to take physical possession at the expira
tion of the delay specified in the notice.
There are two facts in the present instance that
deserve being mentioned at the outset of the study
of that notice: when the notice of the 3rd of April
was sent, the applicant could not have access to the
sand that is Hers because the Municipality of
Richmond had not lifted the load limit to haul
sand and, furthermore, if such access had been
possible the applicant had to wait for the permis
sion to dredge the river from Environment
Canada.
As it is defined at section 33 of the Act "date of
possession" means "the day upon which the Crown
became entitled to take physical possession or
make use of the land to which a notice of confir
mation relates", so that the applicant was not on
August 1, 1974, entitled to possession because it
could not exercise its rights because the need, if
need there was, could not be met legitimately. The
applicant could not haul the sand without the
permission of the Municipality of Richmond and
could not dredge without the consent of Environ
ment Canada. It is repugnant to think that appli
cant would fill a need originating from a right that
could not be exercised legitimately. I believe that it
is more reasonable to construe section 17(1)(c)(i)
in such a way that the need therein, the physical
possession of land, can be fulfilled only when it is
legitimate to use the land taken for the purpose for
which it was expropriated.
Another troublesome question was raised during
the long hearing: the whole question of expansion
of the airport and of the second parallel runway is
dependent upon the decision that shall be taken
upon a report under study as to the ecological
effect of the expansion of the Vancouver Interna
tional Airport. That committee has cost, up to
now, $1,000,000.
On the other hand, the taking of sand outside
Sea Island shall cost for the current year about
$120,000 more than it would have cost if taken
from the sand stock pile belonging to the
applicant.
It has been adduced in evidence that the sand in
the MacDonald site on Sea Island was needed
whether or not the whole project is proceeded with
but still there remains the fact that the need for
the sand could not be filled without permission
from the Municipality and dredging could not be
done without permission from Environment
Canada.
I do not believe that, for purposes of the Act, a
thing that cannot be used legitimately can be
required up to the time it can be used legitimately.
The definition of section 33 and the time set for
that in section 17(1)(c)(i) is very important: the
date of expiration of the delay, because it is one of
the two dates governing the time when the value of
the compensation provided for in section 24(6) of
the Act, under the home for home concept, shall
be established.
To interpret the provisions of section 17(1)(c)(i)
as counsel for applicant would like them to be,
means that the date of entitlement to physical
possession is wholly dependent upon the will of
applicant that may send a notice when it pleases
without showing need, and thereby nullifying for
all practical means the purport of section 24(6) of
the Act, which is to give a fair additional compen
sation under the home for home concept.
With reference to the Canadian Bill of Rights
the learned counsel for respondents stressed that
due process of law had not been followed in the
present instance because the Minister had not
given proper assistance to seek and obtain alterna
tive premises and had stopped negotiations as soon
as actions were instituted for additional
compensation.
In my opinion assistance has to be given if
section 24(5) is to be meaningful, otherwise it is
wholly optional to the Minister to give or not give
assistance. Subsection (5) of section 24 reads as
follows:
(5) For the purposes of subparagraphs (3)(b)(ii) and
(4)(b)(ii), consideration shall be given to the time and circum
stances in which a former owner was allowed to continue in
occupation of the land after the Crown became entitled to take
physical possession or make use thereof, and to any assistance
given by the Minister to enable such former owner to seek and
obtain alternative premises.
As per the evidence the assistance was not
worthwhile.
Instituting an action does not preclude negotia
tions. The severing of negotiations is strange
because it is clearly stated in section 14(4) that
acceptance of the offer is not prejudicial to the
right to claim additional compensation. The
respondents had the right to claim additional com
pensation. The respondents had the right to claim
additional compensation and nothing should have
been done by the applicant that may lead one to
reasonably believe that by stopping negotiations
the respondents were to be pressed to settle or to
vacate. I have had the opportunity to weigh the
testimony of each respondent and natural justice
precludes me from thinking that there is any bad
faith in their suing for additional compensation or
in their stand in not vacating. The fact is that the
respondents were injured in their rights and they
exercised their rights to the best of their abilities:
no one can condemn such action.
It is difficult to assess the value of the assistance
given, but it is easy to realize that the fact that
negotiations came to an end upon the very day
claims for additional compensation were made
might be unjustified retaliation. If it is so, then
that is applying the Expropriation Act so as to
abrogate, abridge or infringe upon the rights of the
respondents not only to equality before the law but
also to enjoyment of property.
At the hearing counsel for respondents wanted
to adduce evidence to show that the procedure
followed at Vancouver was not the same as the one
followed at Mirabel and Pickering, but in view of
the strong objection of counsel for the applicant no
such evidence was entered. I believe that the appli
cant's counsel should have allowed some of these
facts to be admitted as evidence in order to leave
no doubt as to any possibility of difference of
treatment of the respondents and the parties
expropriated at Mirabel and Pickering. The
Expropriation Act should have the same applica
tion throughout our land whatever the number of
persons affected by an expropriation.
Applicant has not shown need to take physical
possession on November 1, 1974 because if it had
shown such need, the need for hauling sand could
not have been filled without the permission of the
Municipality of Richmond and the need for dredg
ing could not have been filled without the permis
sion of Environment Canada and, furthermore, if
need is to be recognized before it can be filled
legitimately, then the purport of the provisions of
section 24(6) of the Act can be nullified at the will
of applicant and to obtain such a result is not
consistent with the object or purpose of the Act.
The motions are dismissed with costs to be paid
by applicant and each respondent is entitled to his
costs being one sixth of the total costs.
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.