A-25-75
The Queen (Appellant) (Applicant)
v.
John Wesley Bolton (Respondent)
Court of Appeal, Jackett C.J., Smith and Shep-
pard D.JJ.—Vancouver, October 21 and 22, 1975.
Expropriation—Whether, before application for warrant for
possession was made, the Crown became entitled to take
possession or use land by virtue of s. 17(1)(c)(i)—Whether
Trial Division erred in holding that the Crown did not become
so entitled unless, upon the application for a warrant, the
Minister established effective need by the Crown for the land
upon the expiration of the period specified in the notice—
Expropriation Act, R.S.C. 1970 (1st Supp.), c. 16, ss.
17(1)(c)(i), 35.
The Trial Division erred in dismissing the application for a
warrant. The right of the Crown to take physical possession or
make use of expropriated lands comes into existence by virtue
of section 17(1)(c) upon the giving of the notice contemplated
thereby and the expiration of the period therein. The right does
not depend upon the fact that such possession or use is needed
at the time.
JUDICIAL review and appeal.
COUNSEL:
N. D. Mullins, Q.C., and I. Stewart for appel
lant (applicant).
W. C. Johnstone for respondent.
SOLICITORS:
Deputy Attorney General of Canada for
appellant (applicant).
W. C. Johnstone for respondent.
The following are the reasons for judgment
delivered orally in English by
JACKETT C.J.: A decision delivered by Decary J.
[[1975] F.C. 31] dismissing an application for a
warrant for possession under section 35 of the
Expropriation Act has been the subject of an
appeal and of a section 28 application [infra, page
252].
Section 35(1) of the Expropriation Act reads as
follows:
35. (1) When the Minister, or a person acting for him, is
prevented from entering upon or taking physical possession or
making use of any land to the extent of any interest expropriat-
ed under this Part, a judge of the Court or any judge of a
superior court of a province may, on proof of the expropriation
and, when required, of the right of the Crown to take physical
possession or make use thereof, and after notice to show cause
given in such manner and to such persons who shall be parties
to the proceedings as the judge prescribes, issue his warrant in
accordance with the form set out in Schedule I to this Act to
the appropriate sheriff directing him to put the Minister, or a
person authorized to act for him, in physical possession of the
land to the extent of the interest expropriated.
As I read this section, the conditions precedent
to the issuance of a warrant are:
(a) a notice to the former owner to show cause
given in accordance with an order of directions,
(b) proof of the expropriation of the land that is
the subject of the application for a warrant,
(c) proof of the right of the Crown to take
physical possession of such land or to make use
thereof, and
(d) proof that the Minister, or a person acting
for him, had been prevented from entering upon
or taking physical possession or making use of
such land.
If these conditions had been complied with, in my
view, the Minister had a right under section 35 to
a warrant and there was no discretion to withhold
it. In this Court, it has been common ground that
there had been compliance with all conditions
precedent to obtaining a warrant except the third,
viz: proof of the right of the Crown to take physi
cal possession of the land or to make use thereof.
The respondent's position, in this Court, is that
this condition had not been complied with and this
was the principal ground upon which the applica
tion for a warrant was dismissed by Decary J.'
The Crown's right, under the Expropriation
Act, to take physical possession of, or make use of,
expropriated land depends upon the application to
the facts of the particular case of section 17(1) of
that Act, which reads as follows:
' Reliance was also placed by Decary J., and by the respond
ent in this Court, upon the Canadian Bill of Rights, but this
Court was not able to understand how the Canadian Bill of
Rights had any arguable application in the circumstances.
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 (c) 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 confirmation,
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 confir
mation, 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
(ii) the Minister has made an offer under section 14 to each
of the persons then entitled to compensation under this Part
in respect of an interest therein.
It is common ground that the real question here
is whether, before the application for a warrant
was made, the Crown had become entitled to take
physical possession or make use of the land that
was the subject of the application for a warrant by
virtue of section 17(1)(c)(0 2 . The relevant words
are
17. (1) ... the Crown becomes entitled to take physical
possession or to make use of ... land ... only at such of the
following times as is applicable, namely:
(c) ... at such time ... as
(i) the Minister has sent a notice to ... the persons appear
ing to have had any right ... therein ... 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 ...
and ... that period has expired ....
2 There was no question as to compliance with section
17(1)(c)(ii).
Decary J. acted on the view, as I understand his
Reasons, that the Crown did not become entitled
to physical possession or use of expropriated land
under the portion of section 17(1) that I have just
quoted unless, upon the application for a warrant
under section 35, the Minister established that the
Crown, in fact, had an effective need for the land
upon the expiration of the period specified in the
notice. Based upon that view, he came to the
conclusion that the Minister failed in his proof and
he dismissed the application. In my view, Decary
J. erred in acting on that view. In my view, the
right of the Crown to take physical possession or
make use of expropriated land comes into exist
ence by virtue of section 17(1)(c) upon the giving
of the notice contemplated thereby and the expira
tion of the period spelled out in such notice. The
'right to take physical possession of, or make use of,
expropriated land under section 17(1)(c) does not,
in my opinion depend upon the fact that such
possession or use is, in fact, needed at that time. 3
Once that view of the matter is adopted, an
examination of the documents put in evidence
before Decary J. establishes, in my opinion, that
the Crown had become - entitled to physical posses
sion of the land that is the subject matter of the
application for a warrant before the section 35
application was launched.
For the above reasons, I am of opinion that the
decision of Decary J. dismissing the application for
a warrant under section 35 should be set aside and
3 This is not the occasion to discuss the various provisions in
the new expropriation legislation designed to alleviate some of
the grievances inherent in the pre-existing law. It is sufficient to
say
(a) that these are to be found in provisions other than
section 35,
(b) that section 24(5) appears to contemplate the possibility
of the Crown becoming entitled to take physical possession or
to make use of its expropriated land before the Crown's need
of the land requires that the former owner be put out of
"occupation", and
(c) I cannot imply from section 25(6) any condition prece
dent to the issuing of a warrant that is not found in
section 35.
that counsel should be heard as to the terms of the
judgment of this Court.
* * *
SMITH D.J. concurred.
* * *
SHEPPARD D.J. concurred.
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.