T-2814-74
R. Gordon Shaw (Plaintiff)
v.
The Queen (Defendant)
Trial Division, Walsh J.—Charlottetown, March
17, 18, 19 and 20; Ottawa, March 28, 1980.
Prerogative writs — Declaration — Crown — Expropriation
of land for National Park — Action for compensation or order
vesting lands in dispute in plaintiff — Whether the plaintiff or
the defendant owned the lands in dispute — Whether or not
the expropriation was valid — Whether or not the Court can
make a declaration ordering the Crown to give effect to a
previous undertaking — Action dismissed — National Parks
Act, R.S.C. 1952, c. 189; R.S.C. 1970, c. N-13 as amended by
S.C. 1974, c. 11 — The National Parks Act, R.S.P.E.I. 1951,
c. 102, ss. 3, 4, 5 and 7 — The Statute of Limitations,
R.S.P.E.I. 1951, c. 87, s. l7.
Plaintiff claims alternative relief either in compensation or
an order vesting the lands in dispute in him. The plaintiff
acquired title to certain lands in 1936 by a deed from his
parents. In 1937, the Province of Prince Edward Island expro
priated a portion of these lands, which was then conveyed to the
Crown in right of Canada (Crown Canada) and set aside as a
National Park. The 1937 expropriation was based on an errone
ous survey done at that time. Accordingly, the plaintiff claims
ownership of part of the lands which were purportedly expro
priated, and he has asserted his ownership by using the lands
for hunting and recreational purposes. Over the years, the
plaintiff actively asserted his claim by writing to various offi
cials until, in 1954, it was generally agreed that the plaintiffs
claim was valid. The Province again expropriated a part of the
plaintiffs lands, the administration and control of which it then
transferred to Crown Canada, but specifically excluded the
area claimed by the plaintiff. In 1974, the description of the
Park was amended in the National Parks Act, and again the
area claimed by the plaintiff was not mentioned. The first issue
concerns the ownership of the area claimed by the plaintiff,
who argues that a large portion of the land expropriated was
formed by natural accretion, and belonged to him as riparian
owner of the land, and for which he received no compensation.
He further claims title on the grounds that the 1937 Order in
Council expropriating his lands was never registered. The
defendant argues that the area in dispute is land which has
developed by accretion and accrued to the Crown. The next
question to be determined is the location of the southern
boundary of the land expropriated in 1937, and whether the
1954 expropriation merely corrected the 1937 boundary, or
whether it constituted a further and additional expropriation.
The final issue is whether or not the Court can make a
declaration ordering the Crown to give effect to a previous
undertaking.
Held, the action is dismissed. The compensation was for the
entire area expropriated as set out in the Order in Council and
the plaintiff can have no further claim arising out of the 1937
expropriation. A delay from 1937 to 1974 to claim title to the
land expropriated on the ground that the Order in Council was
not registered, despite the fact that the land was subsequently
incorporated into the National Park is clearly excessive and any
claim to title to said land is time-barred. In the present case
after carefully describing the land, as he thought it should be
described at the time, the surveyor then also attached the plan
with a red line on it. While the red line corresponds with his
understanding of the description it adds nothing to it, and if the
description was wrong because of an erroneous indication of an
embayment where none existed, then the red line can add
nothing to the description or have the effect of increasing the
area taken. The land in dispute was deliberately excluded by
the Crown P.E.I. from the 1954 expropriation in order that it
could be conveyed to plaintiff and it was excluded from the
amended description in the National Parks Act in 1974. Title
remains therefore in whomsoever it was vested prior to the 1954
expropriation and it is outside the Park boundary and therefore
apparently not desired nor intended to be included as part of
the Park. Defendant insists that it was covered by the 1937
expropriation, yet it admits tacitly if not expressly that the
Cautley survey was wrong so therefore the 1954 expropriation
by Crown P.E.I. and eventual amendment of the National
Parks Act were necessary to correct the southern boundary of
the Park. Quite aside from the agreement entered into at the
time, section 7 of The National Parks Act requires that any
lands expropriated not necessary for the purpose of national
parks shall be resold to the persons from whom they were
expropriated at the price of compensation paid therefor. Since
this area is not in the Park it should presumably be returned to
plaintiff if defendant's argument that it was properly part of
the 1937 expropriation were to be accepted. Since the 1937
expropriation did not properly include the land in dispute, the
Crown's claim to same must depend on accretion. Some por
tions of the land in dispute would therefore appear to be below
the mean high water mark, but a substantial portion of it would
certainly be land. The only definitive conclusion that can be
reached is that part of the land in dispute is Crown land by
virtue of its ownership of the area below mean high water mark
and the larger part is an area to which plaintiff may properly
have a valid claim. The Crown land would accrue to Crown
P.E.I. however and not Crown Canada. It would be equitable
and an act of good faith if Crown Canada now carried out the
agreements entered into prior to the 1954 expropriation and by
Order in Council returned this land to Crown P.E.I. with the
clear understanding that Crown P.E.I. would then return it to
plaintiff. Having indicated what should be done by Crown
Canada to rectify the situation the serious question remaining
is whether this Court can make a declaration to that effect. The
question must be a real and not a theoretical question, the
person raising it must have a real interest to raise it, he must be
able to secure a proper contradictor, that is to say, someone
presently existing who has a true interest to oppose the declara
tion sought. The problem here is that Crown Canada is prob
ably not the proper contradictor. The present proceedings do
not specifically ask for declaratory relief. What they ask for is
either $2,000,000 or an order vesting the lands taken in the
1954 expropriation and the 1937 expropriation, for which no
compensation was paid, in plaintiff. Such an order cannot be
made against Crown Canada and in any event the area claimed
by the plaintiff was not properly included in either expropria
tion. If this area was never properly expropriated its title vested
in either Crown P.E.I. or in plaintiff and not in the present
defendant. While a recommendation can be made as to what
defendant should do, this appears to be a matter for political
rather than legal decision. The Court cannot order the Crown
to pass an Order in Council to give effect to a previous
undertaking. With the exercise of the discretion by Ministers of
the Crown no Court of law can interfere so long as no provision
enacted by the Legislature is infringed.
Grasett v. Carter (1885) 10 S.C.R. 105, distinguished.
Attorney-General for the Province of British Columbia v.
Neilson [1956] S.C.R. 819, applied. Attorney General of
Canada v. Higbie [1945] S.C.R. 385, applied. Solosky v.
The Queen [1980] 1 S.C.R. 821, applied. In re Jurisdic
tion Over Provincial Fisheries (1897) 26 S.C.R. 444,
referred to. Russian Commercial and Industrial Bank v.
British Bank for Foreign Trade Ltd. [1921] 2 A.C. 438,
referred to. Pyx Granite Co. Ltd. v. Ministry of Housing
and Local Government [1958] 1 Q.B. 554, referred to. Cox
v. Green [1966] 1 Ch. 216, referred to. Thorne Rural
District Council v. Bunting [1972] 1 Ch. 470, referred to.
Theodore v. Duncan [1919] A.C. 696, referred to.
ACTION.
COUNSEL:
N. H. Carruthers and T. Matheson for
plaintiff.
R. P. Hynes and J. MacNutt for defendant.
SOLICITORS:
Foster, Carruthers, O'Keefe & Matheson,
Charlottetown, for plaintiff.
Deputy Attorney General of Canada for
defendant.
The following are the reasons for judgment
rendered in English by
WALSH J.: This action concerns the title to
certain land in or adjacent to a national park in
the area between Brackley Beach and Covehead
Bay in Prince Edward Island and in particular to
the southern side of said property. Plaintiff
acquired title to certain lands in Brackley Beach
which had been owned by his family since 1793 on
April 29, 1936 by a deed from his father and
mother. By Order in Council on March 1, 1937, a
portion of this land was expropriated from him by
the Province of Prince Edward Island which lands
are described in Parcel 3, Part VII of the National
Parks Act'. On May 4, 1953, what purports to be
an amended plan of the southerly boundary of said
Parcel 3 was duly registered in Prince Edward
Island and by Order in Council of Prince Edward
Island dated July 22, 1954 it was ordered that
these lands be henceforth vested in the Crown in
the right of that Province. Subsequently this Order
in Council was amended by Order in Council
dated October 21, 1954 transferring the adminis
tration, control and beneficial interest of the said
land to the Crown in right of Canada. A further
amendment to this was made by Order in Council
dated November 25, 1954.
Plaintiff was paid $3,000 in 1938 for what he
claims was approximately 135 acres of land result
ing from the 1937 expropriation but received noth
ing whatsoever for the lands taken in 1954. He
claims that a large portion of the land so expro
priated by the Province of Prince Edward Island
was formed by natural accretion and belonged to
him and that he received no compensation for this.
He sought permission to bring action against Her
Majesty the Queen in right of the Province of
Prince Edward Island and was refused a fiat to do
so which was required at the time by letter dated
January 27, 1972. Plaintiff claims alternative
relief either in the amount of $2,000,000 or an
order vesting the lands described by the Orders in
Council of Prince Edward Island of March 1,
1937, and July 22, 1954, as amended, in him. At
an early stage in the proceedings defendant moved
that plaintiff's statement of claim be struck on the
ground that it discloses no reasonable cause of
action against defendant. This was dealt with at
some length in a judgment of Collier J. dated
November 18, 1974, in which he concluded that
the rights asserted by plaintiff might possibly
follow the land in rem into the hands of the federal
Crown which now has possession of the said lands.
He dismissed the motion stating that the matter
required the full investigation which a trial would
provide. At the opening of the trial defendant
renewed this contention, referring to it as a ques
tion of jurisdiction. While I would not refer to it as
a question of jurisdiction since this Court undoubt-
' R.S.C. 1952, c. 189.
edly has jurisdiction over actions against Her
Majesty the Queen in right of Canada, there is a
very serious doubt as to whether on the facts of the
present case any action lies against this defendant.
The application was taken under advisement, and
very extensive evidence was made including the
production of three books of documents containing
some 250 such documents consisting of plans,
aerial photographs, drawings, copies of Orders in
Council both federal and provincial and copies of
extensive correspondence between Parks authori
ties of the Dominion and of Prince Edward Island,
Members of Parliament, Cabinet Ministers, sur
veyors and so forth. Additional documents were
produced at trial as well as the report of a highly
qualified expert witness, a geo-morphologist
professor from McMaster University who has done
considerable investigation of the Prince Edward
Island shoreline near the area in question, who
testified. Since a number of very serious and inter
esting issues were raised quite aside from the legal
question as to whether plaintiff has any right at all
to sue the Crown in right of Canada, I have
decided to deal with them even though in the end
result any findings made with respect to them may
well prove to be of an obiter nature in view of the
finding to be made on the issue which defendant
refers to as a question of jurisdiction of this Court.
Since Her Majesty the Queen in right of the
Province of Prince Edward Island was not made,
nor could she have been made, a party to the
proceedings in this Court, defendant was placed in
a somewhat difficult position, finding it necessary
to invoke in defence some of the defences which
would have been raised had the action been
against Her Majesty the Queen in right of the
Province of Prince Edward Island. It will be con
venient henceforth to refer to the Crown Canada
and Crown P.E.I. One of defendant's principal
contentions to which considerable evidence was
devoted, including the expert evidence, was to the
effect that the area in dispute, if in fact it is land
at all, was never vested in plaintiff nor in his
predecessors in title, but is land which has devel
oped by accretion as a result of action of the sea
and wind and never did accrue to plaintiff nor his
said predecessors in title but rather to the Crown.
It is conceded by all parties that the shape of land
along the gulf coast of Prince Edward Island has
altered substantially over the years, with bays
being formed and later filled in, islands developing
and later disappearing and channels and gulfs
opening and closing. The exact shape of the sand
bar, part of which eventually developed into what
might now be considered as land which forms part
of the Prince Edward Island National Park (a
federal Park) as of 1793 is little more than a
matter of speculation. The precise location of the
mean high water mark on the southern side of it
on Brackley Bay is even now a matter of dispute
between the parties. It is not disputed as a matter
of law that all land below the mean high water
level on tidal shores is Crown property. Neither is
it disputed that accretion of land takes place in
favour of a riparian proprietor, nor conversely that
he can be deprived of this land by encroachment of
the high water mark on it as a result of tidal
action. It is therefore not without legal significance
to attempt to determine whether all the land mass
which has developed subsequent to 1793 which is
now the easterly portion of the National Park
belonged to plaintiff as of 1936 as a result of
accretion, or whether, as defendant contends, the
boundaries of plaintiff's land as set out in the said
deed indicate that the land which has developed
subsequently and is now part of the National Park
did not accrue to him but rather is Crown land
gradually developing as the sand and silt from
offshore sandbars and islands came together to
form this land mass. If this argument is valid then
there would have been no need for the 1937 or
1954 expropriations as Crown P.E.I. would have
been expropriating its own property, and also there
would be no dispute as to the southern boundary of
the expropriated property on Brackley Bay which
has given rise to the present litigation.
The 1793 deed was for 300 acres of land but it is
only the easterly 200 acres that concern us here.
They were purchased jointly by Duncan Shaw and
Duncan McCullum. It is the easterly and southern
boundaries which concern us and they are
described as follows:
On the North and East by the Narrows of Brackley Point and
Little Rustico Bay; On the South by York Bay or Cove.
The deed goes on to say:
TOGETHER WITH all and singular the buildings, trees, water,
water courses, pastures, meadows, flooding easements, profits,
commodities, advantages, endearments, hereditaments and
appurtenance whatsoever.
The eastern Gulf was sold by McCullum to Shaw.
A rough sketch prepared in 1880 on the basis of a
survey in 1847 indicates a much less pronounced
point of land than now exists but also shows what
appears to be a sandbar to the north separated by
a narrow channel of water, the easterly point of
the sandbar extending considerably beyond the
easterly point of the land in what was then called
York Bay. Defendant contends that this is what
must have been meant by "the Narrows of Brack-
ley Point and Little Rustico Bay" and that subse
quently it was the sandbar which joined on to this
land to the east. This must of course be mere
speculation.
When plaintiff acquired the property in 1936
the boundaries to the south and east were
described as follows:
on the South and Southeast by the shore of Brackley Point Bay;
and on the East by said shore and by the Eastern portion of a
sand bar enclosing the aforesaid Bay, containing ONE HUN
DRED ACRES of land be the more or less, and being the farm
and hotel property of the grantor.
Certainly neither the area involved nor the descrip
tion of it as being the farm and hotel property of
the grantor would indicate any assertion of title of
the land to the east now in dispute which had
apparently grown substantially by accretion. The
fact is that nobody regarded this land as being of
much value at the time. Although it had a nice
beach on the north on the gulf side the southerly
portion was swampy, to some extent tidal, and
mainly of interest to hunters of the ducks and
geese that fed there. In good faith however plain
tiff always considered this land as his land.
If no expropriations had taken place and the
claim had to be settled on the basis of ownership of
accreted land the decision would indeed be very
difficult. The expert witness, whose evidence will
be dealt with in more detail later, could not with
any degree of accuracy be expected to determine
what was the shape of the land in question or the
mean high water mark surrounding it in 1793. In a
general way all he could state was that as a result
of his observations made during a three-day period
in July 1978 it appeared that a substantial part of
the area designated as C and probably part of that
designated as B 2 under dispute on Brackley Bay
was covered by tidal water at least to the depth of
an inch or two. The type of vegetation indicates
that this would be classified as a low marsh area
and this vegetation requires inundation daily. A
different type of vegetation is indicated by high
marsh which requires inundation only a few times
a month. In higher levels above this the vegetation
is Baltic rush which cannot stand salt water. Some
higher areas in the park now have trees. He stated
that the normal development would be for what
originally would be islands or sandbars to wash
ashore and to erode from the north or gulf side and
carry over or through channels with the passage of
time to the south or Brackley Bay side. This
normal development might have been expected to
cause the shoreline on the south side to gradually
recede with the passage of time with the marsh
eventually becoming drier land. The wash-over
and inlet patterns form and reform in a matter of
decades not centuries. Instead of the south shore
on Brackley Bay building up, however, it has in
fact been retreating from 1935 to 1960 at a rate
which he considers to be about 1 metre a year.
This is to some extent due to the construction of a
road along the park from end to end which has
made the land more stable and tends to stop the
transfer of sand across what might perhaps be
referred to as the peninsula.
The parties are in general agreement that the
area in dispute has become somewhat marshier if
anything with the passage of time. At one time in
the 1930's plaintiff had a small golf course for his
guests extending from the property where his hotel
is situated into the area shown as an embayment in
the Cautley survey in 1937 which will be dealt
with later, and perhaps partially in the area desig
nated as B. This no longer exists. He and a long
time neighbour, Walter Matheson, now 92 years of
age, who testified, had been active in having some
ponds excavated in the area designated as C in
which to float decoys to attract the wild birds. One
area had also been built up on this land referred to
jocularly by plaintiff and his guests as Hill 70 as
an observation point and blind to use in connection
2 The location of these designations will be referred to later.
with the hunting. These acts certainly constitute
an assertion of ownership over the said land, and
also give some indication that at least portions of it
were comparatively dry, at least at the time of the
first expropriation.
In any event it becomes somewhat academic as
to who owned the major portion of the land now
occupied by the National Park prior to the expro
priation since the Crown P.E.I. decided to expro
priate in 1937. The southern boundary of the land
so expropriated and whether the second expropria
tion in 1954 merely corrected this boundary or
constituted a further and additional expropriation
are the issues in the present case, so that if plain
tiff ever had title by accretion to the lands so
expropriated he no longer retained this title follow
ing the expropriation, whether these expropriations
were necessary or not in order to confer title on the
Crown P.E.I. and administrative control on Crown
Canada. The method of establishing national parks
in Canada calls for the province to expropriate or
otherwise acquire the necessary land designated
for this purpose, which is then turned over to
Canada, and then by the National Parks Act of
Canada is incorporated into a National Park.
While the National Parks Act a provides in section
6(3) that the Governor in Council may authorize
the Minister to purchase, expropriate or otherwise
acquire any lands or interests therein, including
the lands of Indians or of any other persons, for
the purposes of a park, provision is made in section
6, subsection (4) that the Expropriation Act
applies to any expropriation proceedings taken
under this section. The land for this park was not
acquired in this manner by the Crown Canada,
however, but was expropriated by the Crown
P.E.I. on March 1, 1937, as previously indicated,
the boundaries being described and set out in the
plan annexed to the Order in Council. The Na
tional Parks Act of Prince Edward Island, (1936)
1 Edw. VIII, c. 17, in effect at the time leaves the
payment of compensation for land expropriated for
this purpose almost entirely in the discretion of the
Lieutenant-Governor-in-Council. Section 5 of that
Act (now R.S.P.E.I. 1951, c. 102) provides as
3 R.S.C. 1970, c. N-13.
follows with respect to the lands designated for a
National Park by an Order in Council:
5. (1) If, within a reasonable time from the making of the
Order-in-Council, a satisfactory agreement has not been
reached with regard to the amount and apportionment of the
compensation to be paid by the Government of the Province by
way of compensation for the lands and premises thereby expro
priated, the Lieutenant-Governor-in-Council may make a fur
ther order fixing the amount of such compensation, and the
Provincial Treasurer may thereupon pay the amount so fixed
into the Court of Chancery, to be apportioned and paid out
upon the application of any of the parties entitled thereto. Such
payment into Court shall fully discharge the claim of all
persons whatsoever for compensation in respect to the expro
priation of such lands.
(2) In default of such application for payment out of Court
by the parties entitled within three months after such payment
into the Court of Chancery by the Provincial Treasurer, the
Provincial Treasurer shall be entitled, as of right, on applica
tion to the Court, to an order directing the Registrar of the
Court of Chancery to forward a cheque from the court to such
parties so entitled to payment out of Court.
It is especially significant that this section uses the
word "may" rather than the word "shall" and
refers merely to an "amount" to be paid as com
pensation. Since the word "amount" means any
thing whatsoever from 10 or $1.00 to an infinite
amount what the section in fact says is that unless
the owner agrees he must take whatever sum if
any is offered to him as compensation. It is of
interest to note that section 7 reads as follows:
7. In case any lands so expropriated shall not be necessary
for the purpose of a National Park, the Lieutenant-Governor-
in-Council shall first offer to resell such lands to the persons
from whom the same were expropriated at the price of the
compensation paid therefor, and in default of such offer may
sell or otherwise dispose of the same as to the Lieutenant-Gov-
ernor-in-Council may seem fit.
This may be marginally significant as will be seen
later since the parcel B has been excluded from the
amended description to the park in the Canadian
National Parks Act. While what appear to be the
excessively severe provisions of the P.E.I. statute
seem to contravene the fundamental principle that
no man shall be deprived of his property by the
Sovereign without just compensation, I would not
go so far as to say that it was beyond the powers of
the Prince Edward Island Legislature to adopt it,
nor could it in any way be set aside in the present
proceedings in which the Province of Prince
Edward Island is not a party nor is it represented.
In making his claim for compensation on June 11,
1937, plaintiff claimed for a value of 8 acres of
arable land at $150 an acre or $1,200, 28 acres of
wood land (partially saleable at $10 per square
chain) at $50 an acre or $1,400 and 42 acres of
rough pasture, sandgrass, cranberry beds, and
inner beach at $30 per acre or $1,260 making a
total (apparently added wrongly) of $3,760.
Subsequently on June 16 his attorney called atten
tion to the fact that he had overlooked 15 acres of
marsh land in addition to the acreage claimed
which at $30 an acre added another $450 to his
claim making a total of $4,310. In the Schedule
dated August 6, 1937, to the order of the Lieuten-
ant-Governor-in-Council setting the amounts to be
paid to various parties expropriated for this pur
pose he is shown as being allowed $2,098.75.
Subsequently on September 28, 1937, plaintiff
stated that he had had 10 acres of open land
expropriated by the Government for the Park, the
other 117 acres being dunes and woodland and
would like to have the line changed so that the
open land would be left to him, the land being
valuable to him but inaccessible for Park purposes.
This was in a letter to Mr. Roy Gibson, Depart
ment of National Resources, Ottawa. After con
siderable investigation and discussion and
exchange of correspondence by various persons
including the then Premier of Prince Edward
Island this request was eventually refused. In
January 1938 however an evaluation of the timber
land expropriated from Mr. Shaw was made giving
a total value of $2,206.40 for the timber. Finally
his claim for the expropriation was settled in full
in the amount of $3,000 which was paid on April
14, 1938, an Order in Council having been passed
approving this. At trial plaintiff testified that he
believed that this was in payment only for the
portion of the property expropriated on which he
had placed a specific evaluation, and that this
made no provision for all the rest of the land
expropriated from him for the Park which he now
claims was his by accretion. He states, and there is
no reason to disbelieve him, that a Government
engineer had told him that he did not own any of
the land to the east of the point shown in the
surveyor's plan as Pin XLII and that is why he
only evaluated the land to the west of it. This is
quite likely as the Province took the position that
this was Crown land. In any event there is no way
whatsoever that a breakdown can be made be-
tween the portion of the land expropriated for
which he claims he was paid and another portion
for which he claims he was not paid. The compen
sation was for the entire area expropriated as set
out in the Order in Council and he can have no
further claim arising out of the 1937 expropria
tion.
A further argument was raised by plaintiff in
asserting a claim to title in the land taken in the
1937 expropriation. Section 3 of The National
Parks Act (P.E.I.) provides that the Order in
Council containing a plan and description of the
land so taken shall be filed in the Registry of
Deeds for the County in which such lands lie.
Section 4 requires that the Order in Council shall
be forwarded by registered post to any person
having an interest therein. Neither formality was
complied with. Mr. Shaw's first knowledge that
there was to be an expropriation was when the
surveyor Cautley visited the property, and in fact
stayed with him during the survey. Whether or not
he was notified by registered mail of the expro
priation he was certainly aware of it and negotiat
ed the compensation to be paid, which he received
in due course.
A witness from the Registrar of Deeds testified
that neither the Order in Council of March 1,
1937 nor the sale from Crown P.E.I. to Crown
Canada of March 4, 1937 were ever registered.
She stated that at one time Orders in Council were
not registered but merely kept in the office of the
Provincial Secretary. Registration was not refused
however. Since the 1950's these Orders in Council
are registered, and the 1954 expropriation was
registered in conformity with the Act.
The Statute of Limitations (P.E.I.) being c. 87
of the Revised Statutes P.E.I. 1951 provides in
section 17 a period of 20 years for proceedings to
recover land from the time at which the right to do
so accrued. A delay from 1937 to 1974 to claim
title to the land expropriated on the ground that
the Order in Council was not registered, despite
the fact that the land was subsequently incorpo
rated into the National Park as appears by Part
VII of the National Parks Act, R.S.C. 1952, c.
189 and the Park has since been developed there,
is clearly excessive and any claim to title to said
land is time-barred. It was apparently on the basis
of his claim to title in this portion of the Park land
that the greatly exaggerated claim for $2,000,000
was made on the argument that if the expropria
tion was not properly carried out this entire area of
the National Park, including the very fine beach
on the gulf side of it was wrongly taken from him,
and he should be compensated for it. This particu
lar contention has no merit whatsoever, as the
Court so indicated and after consultation with his
counsel plaintiff withdrew his claim for any fur
ther compensation arising out of the 1937 expro
priation. I believe the comment should be made
however that, having accepted $3,000 for 117
acres of his best land it was preposterous to sug
gest $2,000,000 as compensation for a few hun
dred acres of sand dunes, beach and to the south
ern section swamp land. Counsel defended the
amount of this claim by stating that since a Court
cannot judge ultra petita it is always necessary to
make a sufficient demand to cover any possible
claim. I am of the view however that the making of
excessive and grossly exaggerated claims is an
abuse of the process of the Court, as they tend to
indicate a far greater jeopardy for a defendant
than the facts justify, with the result that a great
deal more will be spent in many cases on legal
proceedings than the total amount which could
possibly be recovered even if the action succeeded.
Such claims are prevalent especially in actions
brought before juries in the United States but in
my view should be discouraged and only realistic
amounts should be claimed. In the present case the
amounts expended for surveyors, experts, repro
duction of exhibits and legal time, to say nothing
of the time of highly placed civil servants, Cabinet
Ministers and others exceeds by a hundred-fold
the value of any land claimed by plaintiff. As
plaintiff's counsel pointed out in summation, over
the period of the dispute, there have been ten
Federal National Parks people involved and four
from P.E.I., eight legal advisers to Federal Gov
ernment Departments or the Department of Jus
tice, including two Deputy Ministers, the Deputy
Attorney-General of P.E.I., the Prime Minister of
P.E.I., the Provincial Attorney-General and Pro
vincial Member of Parliament, four different sur
veyors, and since 1954, four representatives of the
Solicitor General of Câtrada, five federal Cabinet
Ministers, and numerous others, an extraordinary
and regrettable story. As defendant's counsel very
properly pointed out however the Crown should
not settle a claim which it believes to be unfound
ed, even if the cost of contesting it greatly exceeds
what is involved. The Court suggested it might
exercise discretion in the event plaintiffs action is
dismissed in refusing to allow to the defendant the
enormous costs involved, and subsequently counsel
confirmed that he was now instructed not to ask
for them, which I consider proper in the
circumstances.
The boundaries of the area expropriated in 1937
which boundaries were purported to be corrected
by the 1954 expropriation have given rise to the
confusion and led to the present litigation. Mr. R.
W. Cautley reputed to be an eminent surveyor at
the time who was engaged by the federal authori
ties to make the survey wrote to the Surveyor
General of Canada on October 30, 1936, stating
that it was "an emergency survey being made at
the wrong time of year in order to enable the local
government to pass title to the Dominion so that
the Parks Branch may give authority to expend the
current appropriation for this park. It is a case of
working against time to get the very considerable
amount of survey work required finished before
the country is completely frozen up". In a letter to
the Deputy Commissioner, National Parks of
Canada on October 30, 1936, he states "In regard
to the expropriation proceedings to be taken up by
the Province I think you will agree that we have
nothing whatever to do with them and that it
would be very unwise for us to assume responsibili
ty for them". Subsequent correspondence refers to
the extraordinarily severe winter conditions
encountered.
In commenting on the proposed description of
the property the Surveyor General of Canada
wrote to the Controller of the National Parks
Bureau on February 15, 1937 stating inter alia
that there are certain lakes, ponds, streams or
marshes that are intended to be included in the
Park, adding "If the beds of these waters are not
already in the Crown in the right of the Dominion
I would suggest that the description read: 'With all
the lands and lands covered by water'." He also
points out that the blueprint does not indicate that
there is a red border on the plan and goes on to say
"a metes and bounds description is preferred for
this parcel".
It is not necessary to include the entire descrip
tion as amended of the property expropriated but
the portion that concerns us refers to an Iron Post
marked XLII, and then goes on to say:
Thence continuing in the same straight line on a bearing of
S. 88° .38' .2.E to intersect the line of mean high tide of
Brackley Bay; thence easterly along the line of mean high tide
of Brackley Bay and Covehead Bay to the entrance of Cove-
head Harbour; thence westerly along the line of mean high tide
of the Gulf of St. Lawrence to the Entrance of Rustico Bay;
thence easterly along the line of mean high tide of Rustico Bay
to the point of commencement the whole as shown outlined in
red on the attached plan.
In a memorandum dated February 17, 1937 it is
stated that the area expropriated contained 846
acres. Following the expropriation by P.E.I., a
deed of sale from the Crown in right of P.E.I. to
the Crown in right of Canada of the property
expropriated was made for $1 on March 4, 1937,
and on April 6, 1937, a Canadian Order in Coun
cil proclaimed the said lands to be set aside as a
National Park.
The problem with the description and plan pre
pared by Mr. Cautley is that it shows a deep bay
referred to by witnesses and in correspondence as
an embayment just to the east of Iron Post XLII
and with the tip of the bay extending slightly to
the north of a straight line drawn in an easterly
direction between Iron Post XLII and Iron Post
XLIII which latter is some distance to the right of
the embayment. Plaintiff testified, supported by
the witness Matheson, a long time resident of the
area, that no such embayment existed. In fact one
of the greens of his golf course would have been in
the middle of where the embayment is shown.
They state and other persons seem to agree in the
voluminous correspondence produced that Mr.
Cautley may well have been misled by ice piled on
the shore which he mistook for the shoreline and
indicated to him the existence of the embayment.
While the evidence of the expert witness McCann
indicated that from the vegetation it was likely
that there was a slight embayment at that point I
think that the weight of the evidence indicates that
it was not nearly as deep as is shown on the survey.
This is significant because unless there was an
embayment as far inland as shown on the survey
the description of the boundary as going in a
straight line on a bearing S 88° .38' .2.E would not
intersect any mean high tide line on Brackley Bay,
being on solid land and would continue due east
through Post XLIII well to the right of the embay-
ment and right through to Covehead Bay. In that
event however, as already pointed out, it would be
difficult to interpret the description as it would
never touch any line of mean high tide of Brackley
Bay; instead it would terminate at Covehead Bay.
If the embayment did not in fact exist then the
small area at the tip of it marked as A on subse
quent plans was not covered by the 1937 expro
priation. Two other areas marked on these plans,
the exact dimensions of which are not significant,
are marked B being an area partly in and partly
immediately to the east of what is shown as the
embayment on the plan, extending 850 feet east of
Iron Post XLII then down to the red line which
purports to be the mean high water mark, and a
substantially larger area subsequently designated
as C going from the east of the area marked B
right through to Covehead Bay. The northerly
boundaries of Areas B and C would be the straight
line drawn from Iron Post XLII to Iron Post
XLIII and carried through on the same bearing to
Covehead Bay. These are the areas in dispute.
The description given of the land taken in the
1937 expropriation concludes with the words "The
whole as outlined in red as shown on the attached
plan". Defendant contends that this line deter
mined the boundary and establishes the land
taken, and cites jurisprudence in support of this
including the Supreme Court case of Grasett v.
Carter 4 . I do not agree. In that case as in others
there was no description by metes and bounds but
merely the plan to go by. In the present case after
carefully describing the land, as he thought it
4 (1885) 10 S.C.R. 105.
should be described at the time, the surveyor then
also attached the plan with a red line on it. While
the red line corresponds with his understanding of
the description it adds nothing to it, and if the
description was wrong because of an erroneous
indication of an embayment where none existed,
then the red line can add nothing to the description
or have the effect of increasing the area taken. It
appears that this was the understanding of most of
the officials concerned or there would have been
no need for the 1954 expropriation to make sure
that this land was included.
Between 1937 and 1954 Mr. Shaw was most
active in correspondence with various officials in
an attempt to assert his claim to this area. In a
letter of March 22, 1949, to Mr. James Smart of
the Department of Mines in Ottawa he states that
the area he spoke about which Mr. Smart marked
on the map is ground owned by him. He goes on to
state:
Luckily there was a mistake made by the surveyor and the
whole thing is wrong as a consequence.
After saying that he had an engineer go over it and
consulted the Department of Public Works he
states:
It seems your property has to continue on the present line until
it hits Covehead bay. However I only want a part of it.
He discussed the building of approach roads to the
Park and adds:
I do hope they will do this road before I die of old age.
This is ironic to say the least since in 1980 he was
still well and hearty and testifying in Court! He
enclosed a rough sketch entitled "Proposed Area
to be Retained" which was that subsequently des
ignated as Area B and on the area subsequently
designated as C he writes "you can have this
part". In a memo to the legal adviser of the
Department of Resources and Development Mr.
Smart recommended this in order that a final
interpretation of the parks boundaries could be
made. The legal adviser replied that the matter
should be taken up with the Province and if they
are prepared to give a deed to the additional
property the boundary can be surveyed and the
Act amended. Voluminous correspondence ensued
and it appears to have been quite generally conced-
ed by all parties that in 1937 the expropriation did
not in fact include these areas or that at least there
was some doubt as to whether it did. At one point
Area B was to run for 500 feet east of Post XLII
before the line cut down to Brackley Bay. Mr.
Shaw wanted 1,000 feet and the Parks Superin
tendent suggested 700 feet. On February 11, 1952,
Mr. Shaw's friend, Mr. Matheson, wrote to the
Parks Superintendent stating:
Of course our attitude is that this land never did belong to the
Province or to the D. of C. and that the Shaws are really giving
the high ground and the sandhills to the National Park, and
any area retained is only a small part of their rightful holdings.
On August 16, 1952, the Parks Superintendent
writes to the Director of the National Parks stat
ing that he has now discussed the Brackley Bay
Boundary with Mr. J. O. C. Campbell, the Provin
cial Deputy Attorney-General, and he has
expressed the opinion that Mr. Shaw is the owner
of the disputed sector which was considered an
inlet by the surveyor, Mr. R. W. Cautley, and
which now appears to be dry land, so that any
proposed boundary changes in this area, therefore,
would have to be arranged between Mr. Shaw and
ourselves. H. A. Young, Deputy Minister, on
October 6, 1952, writes to Mr. Campbell suggest
ing that the line be extended easterly for 850 feet
from Post XLII thence on a bearing south 24°50'
E. to intersect the line of mean high tide of
Brackley Bay. This would be the Area B. It was
pointed out that Mr. Shaw would then be request
ed to quit claim his interest in all lands north and
east of the proposed new boundary. Mr. Campbell
accepted this suggestion as being a wise one. A
new survey was suggested. The survey was made
by Mr. V. A. MacDonald, Chief Surveyor of the
Department of Public Highways of P.E.I. A
description was prepared of the new boundary
proposed for the Park which would exclude Area B
but include Areas A and C. Meanwhile the Parks
people permitted shooting in the controversial
area. After more correspondence the Department
of Justice in January 1954, named F. A. Large,
Q.C. of Charlottetown (now Mr. Justice Large) as
their agent to look into the matter. In a letter from
the Department of Justice dated May 6, 1954, to
Mr. Large it was suggested that to avoid any
future question of ownership the lands included in
the parcel designated as C be reacquired by the
Province and transferred to Her Majesty the
Queen in right of Canada.
In due course Prince Edward Island Order in
Council was passed on July 22, 1954, as previously
indicated amending the description so as to include
Areas A and C but specifically excluding Area B.
Mr. Large wrote the Deputy Minister of Justice in
Ottawa stating that he had prepared a conveyance
to transfer the two parts of land from the Province
to the Dominion. At this stage W. R. Jackett,
Assistant Deputy Minister (later Chief Justice
Jackett) wrote Mr. Large suggesting a further
Minute of the Executive Council of Prince Edward
Island transferring the "administration, control
and beneficial interest" in the lands to the Crown
in right of Canada quoting jurisprudence to the
effect that a conveyance from Crown P.E.I. to
Crown Canada would not be proper. This amend
ing Order in Council was made on October 21,
1954, and was duly registered with the Registrar
of Deeds as required by section 3, c. 102 of the
Statutes of P.E.I. Mr. Large also directed that
pursuant to section 4, a copy should be mailed to
Mr. Shaw by registered post.
A Canadian Order in Council was passed on
April 6, 1955, referring to the need to adjust the
boundaries of Parcel 3 to conform with the revised
plan and survey, stating that it will be necessary
for Canada to obtain from P.E.I. title to two
parcels of land, and to transfer to the Province a
parcel of land adjoining and north of Brackley
Bay.' The transfer of the two parcels to the
administration, control and management of Crown
Canada was approved. While no specific mention
was made of the purpose of reconveying said
Parcel B to P.E.I. it is evident that the intent was
that this would then be transferred to Mr. Shaw.
Lengthy subsequent correspondence established
only that what local residents were primarily inter
ested in was the shooting. The Park people were
5 This would be Parcel B.
concerned that they could not prevent it so an
amendment to the National Parks Act was pro
posed to include the revised description in the Park
boundaries. New Deputy Ministers and Ministers
both Provincial and Federal got into the picture
and the situation was explained over and over
again. Apparently attempts were made to reopen
the matter and exclude more land from the Park
for purposes of hunting. On September 5, 1957,
the Honourable Alvin Hamilton who had been
corresponding with J. Angus MacLean, Minister
of Fisheries of P.E.I. wrote Mr. Shaw stating that
"any change which would reduce still more the
area of land held for the National Park would
upset the compromise agreement that has been
accepted for several years. To consider such a
change would mean therefore reconsidering the
existing compromise and the Department would
have no choice but to revert to its original interpre
tation of the 1937 plan. Any final decision then
reached might well be less favourable from your
viewpoint than the one now in effect. Under the
circumstances I trust you will agree with me that
it will be best to leave matters as they now stand".
The Honourable Mr. Hamilton also had occasion
to write H. MacQuarrie, at that time an M.P. for
P.E.I. subsequently Senator MacQuarrie, with
respect to a petition by a group of constituents
attempting to enlarge the area available for shoot
ing. He also stated that it was not desirable to
make any further changes to Park boundaries.
Further correspondence with the Honourable W.
A. Matheson, then Premier of P.E.I. in 1957,
indicated some wavering in this situation. On Sep-
tember 30, 1958, Mr. Hamilton wrote Mr. Mathe-
son indicating that following a new survey Parcels
B and C will be reconveyed to the Province. The
letter states categorically that Parcels B and C "do
not presently form a part of the park because of
the ambiguity of the description of the shoreline
properties as presently contained in the Schedule
of the National Parks Act".
Much of the subsequent correspondence
involved the area generally and mean high tide
location. In 1970 it was decided by the then Minis
ter of Indian Affairs and Northern Development
that the land should be retained for Canada as it is
an important feeding area for migratory birds. In a
letter dated February 22, 1974 from Pierre Fortin,
Special Assistant to the Minister of Indian and
Northern Affairs to plaintiffs counsel it was
indicated that Crown Canada was reverting to the
original position, that the areas in question had
always been included in the Park since 1937 and
that the 1954 expropriation was only to resolve
any uncertainty and not through any admission
that Area C was outside the Park boundary. Actu
ally the Canadian National Parks Act was amend
ed by S.C. 1974, c. 11 so as to include the Areas A
and C. Area B in which plaintiff asserts ownership
exists as it were in limbo. It was deliberately
excluded by the Crown P.E.I. from the 1954
expropriation in order that it could be conveyed to
plaintiff and it was excluded from the amended
description in the National Parks Act in 1974
which only included a description of the Park
Areas A and C, so expropriated by the Crown
P.E.I. for that purpose. Title remains therefore in
whomsoever it was vested prior to the 1954 expro
priation and it is outside the Park boundary and
therefore apparently not desired nor intended to be
included as part of the Park. All that is required is
for Crown Canada by Order in Council to recon-
vey it to Crown P.E.I. which in turn would convey
it to plaintiff pursuant to the agreements entered
into at the time. Defendant insists that it was
covered by the 1937 expropriation, yet it admits
tacitly if not expressly that the Cautley survey was
wrong, so therefore the 1954 expropriation by
Crown P.E.I. and eventual amendment of the Na
tional Parks Act were necessary to correct the
southern boundary of the Park. Quite aside from
the agreement entered into at the time, section 7 of
The National Parks Act (supra) requires that any
lands expropriated not necessary for the purpose of
national parks shall be resold to the persons from
whom they were expropriated at the price of com
pensation paid therefor. Since this area is not in
the Park it should presumably be returned to Mr.
Shaw if defendant's argument that it was properly
part of the 1937 expropriation were to be accepted.
As I see it the only area to which plaintiff now
can have any claim is that designated as B and
deliberately excluded from the National Park.
Since I do not consider that the 1937 expropriation
properly included it, the Crown's claim to same
must depend on accretion. Similarly Mr. Shaw's
claim is also based on accretion. As I stated previ
ously the evidence in this area is very inconclusive.
Dr. McCann who was a very well informed and
helpful expert witness could not establish with any
degree of certainty where the mean high water
mark would be reached on it even in 1978 and of
necessity this would be even more uncertain as of
1936 or 1793. His observations were admittedly at
a time when the tides were at their highest, the
moon being in perogee and full at the time. The
high tide would admittedly be lower at other times
of the year. Among the jurisprudence and authori
ties referred to, one of the most helpful in this
connection is the treatise The Law of Rivers and
Watercourses, A. S. Wisdom, pages 19 and 20
which defines the foreshore as "the portion of land
which lies between high and low water mark at
ordinary tides, or more particularly the land be
tween the high and low water mark between the
ordinary flux and reflux of the sea. Ordinary high
tide is taken at the point of the line of the medium
high tide between the springs and neaps, ascer
tained by the average of the medium tides during
the year, that is to say, the point on the shore
which is about four days in each week for the most
part of the year reached and covered by the tides".
Another good definition is found in La Forest:
Water Law in Canada—The Atlantic Provinces—
at page 240 where he states:
By ordinary high water mark is meant the medium high
water mark at ordinary or neap tides. To add precision it may
be well to note that the law takes cognizance of three types of
tides: (I) high spring tide, which happens at the two equinoxes;
(2) spring tide, which happens at the full moon and the change
of the moon; (3) the neap or ordinary tide, which takes place
between full moon and change of moon twice every twenty-four
hours. The first two are excluded in computing medium high
water mark, which refers to ordinary or neap tide. The ordinary
or neap tide, of course, varies from day to day. For about three
days in the week, the tide is higher than the medium, and for
about three days, it is lower; for one day medium tide is
reached. It is this medium tide that has been adopted as the
ordinary or mean high water mark. In Nielson v. Pacific Great
Eastern Ry. ([1918] I W.W.R. 597) Macdonald J. of the
Supreme Court of British Columbia stated that such limit can
only be determined by observation extending over at least a
year, and there being no such records in British Columbia when
that case was decided, he relied on the state of vegetation and
accumulation of debris and driftwood. But under ordinary
circumstances, it seems doubtful that the state of vegetation
will be used as a guide; in Turnbull v. Saunders ((1921), 48
N.B.R. 502) in the Supreme Court of New Brunswick it was
stated that vegetation has nothing to do with locating high
water mark.
Some of the vegetation described by the witness
McCann requires watering by sea water only four
or five times a month. This would not be medium
high tide but occasional high tide throughout the
year. The medium high tide level would be some
what below this. There is a large sand area shown
clearly in aerial photographs where most of the
flooding occurs. Most of this is in the area desig
nated as C but part of it appears to be in Area B.
Some portions of Area B would therefore appear
to be below the mean high water mark, but a
substantial portion of it and in particular the
higher area to the northwest on which for example
there is a spruce tree some 45 years old would
certainly be land. In a surveyor's plan dated Octo-
ber 12, 1977 (Exhibit 237) a line is indicated as
the present ordinary high water mark as of that
date which is higher than that as determined by
surveyor V. A. MacDonald in 1953, but certainly
does not enter into the area indicated as an embay-
ment in the Cautley survey in 1937. A substantial
portion of Area B must therefore be considered as
land. Relying largely on the Supreme Court case
of The Attorney-General for the Province of Brit-
ish Columbia v. Neilson 6 defendant placed consid
erable stress on the theory of vertical formation as
distinguished from accretion. That case dealt with
alluvial deposits formed by a river, which is not the
case here, but the same principles apply. The
theory, which is also supported by other jurispru
dence is that accretion properly speaking occurs
when the shoreline recedes gradually and almost
imperceptibly over a long period of time. However
if sand or silt is carried into a given area and left
deposited there (in this case aided by the vegeta
tion which would tend to hold it as the water
receded) it gradually builds up vertically. The
6 [1956] S.C.R. 819.
facts in the British Columbia case were substan
tially similar to those in the present case to the
extent that it is ever possible to compare two land
areas and Rand J. stated at page 827:
But accretion, the slow extension of land through the imper
ceptible change of boundary, is treated in both courts below as
including the gradual generalized rise, through deposit, of the
bed of a river. With the greatest respect I cannot but think this
is a misconception. That gradual rise here was not, during its
progress, accretion; it was on the contrary a process of wide
spread emergence of land owned by the Crown. Accretion does
not arise until the high water line has retreated or been forced
back by the expanding land. When the general low tide level in
this case was reached, the area covered by water remained in
the Crown: the deposit raising the bottom vertically had
touched no other ownership. Then began the formation of
outside ridges on that soil contemporaneously with that forming
at the boundaries of the original lot. Except at the latter point
they were emerging strips of what was river bottom unconnect
ed with the lot. This generalized vertical formation had no
element of progressive annexation to and extension of existing
land resulting in a change of water boundary: the main ridge at
the southerly end was in the same process and in the same
degree of rising as at the northerly end.
Where the conditions of the operation of accretion for private
benefit are not present, the ownership of the Crown is
unaffected.
Certainly a sandbar or island off shore does not
belong to the riparian proprietor unless it is clearly
included in his title, and if with the passage of time
silt and sand fill in the area between, this would
not give him ownership of that area or of the
sandbar, whereas a gradual extension of land out
wards by tidal and wind action would properly
constitute accretion. What is the situation when
and if this accretion from the shore eventually
reaches the sandbar is a question on which I will
express no opinion because there is nothing to
indicate that this is what happened on the souther
ly shore in the Brackley Bay area.
I believe that the only definitive conclusion that
can be reached with respect to Area B is that part
of it is Crown land by virtue of its ownership of the
area below mean high water mark and the larger
part is an area to which Mr. Shaw may properly
have a valid claim. The Crown land would accrue
to Crown P.E.I. however and not Crown Canada.
(See: In re Jurisdiction Over Provincial Fisheries
(1897) 26 S.C.R. 444 at pp. 514, 515. See also
Water Law in Canada (supra) at page 463.)
The refusal of Crown Canada to return to
Crown P.E.I. Area B in order that Crown P.E.I.
may then convey clear title to it to Mr. Shaw is
difficult to understand since it has now been defin
itely excluded from the Park boundaries in the
amended description in the 1974 statute. This
would clear up the title to this area once and for
all and to the satisfaction of all parties and would
be merely the carrying out in good faith of agree
ments reached after long discussion and approved
by several Ministers of the Crown. Mr. Shaw has
consistently asserted title to the said area by build
ing his golf course on it, subsequently hunting
blinds and so forth and even at one time posted
notices that it was private property and that tres
passers would be prosecuted (Exhibit 211-A).
Crown Canada for its part never opposed this and
has now decided not to include it in the area of the
Park property. Even in Area C Crown Canada
never prevented hunting until at least after the
amending Act of 1974 including it in the Park
boundaries. There was apparently some doubt as
to whether it was desirable to leave it for hunting
or include it in the Park boundaries to prevent this,
this being a political issue which was debated from
the expropriation of Areas A and C in 1954 right
up to the passage of the statute in 1974. Plaintiff
himself may not be entirely free from blame if the
1954 settlement which everyone had agreed to was
not put into effect. Having agreed to abandon any
claim to Area C in exchange for being given clear
title to Area B he and his friends and associates
then made every effort to have Area C excluded
from park property and left open for hunting. The
matter became a political as well as a legal issue so
that Crown Canada took the position, probably
properly, that they would do nothing further to
implement the agreement with respect to Part B
until the National Parks Act was amended to
include Areas A and C, and this took 20 years to
put into effect. Mr. Shaw was left with the use of
it but no clear title to the land in the interval. It
can even be argued that if the 1937 expropriation
included Areas B and C or that they belonged to
the Crown by virtue of accretion then Mr. Shaw in
negotiating a deal to sign a quit claim for any
further claims over Area C in return for being
given clear title to Area B was really negotiating
for ownership of land which did not belong to him.
Defendant relies on alternative and in a sense
mutually exclusive arguments. The first is an as
sertion of title by virtue of the 1937 expropriation
based on the description of Mr. Cautley at that
time which now seems to be generally admitted to
be erroneous. If it were not, the 1954 expropriation
would have been entirely unnecessary and super
fluous. Crown Canada actually participated in the
arrangements for it and in due course accepted the
"administration, control and beneficial interest" in
the areas then expropriated, which excluded Area
B. Although the land expropriated in the 1937
expropriation was actually sold by Crown P.E.I. to
Crown Canada, it later transpired that this was an
erroneous method of dealing with it. In the
Supreme Court of Canada case of The Attorney
General of Canada v. Higbie 7 it was stated at page
404:
After all, there is no real conveyance of property, since His
Majesty the King remains the owner in either case and, there
fore, it is only the administration of the property which passes
from the control of the Executive of the Province to the
Executive of the Dominion. When the Crown, in right of the
Province, transfers land to the Crown, in right of the Dominion,
it parts with no right. What takes place is merely a change of
administrative control.
Title should therefore not have been transferred to
Crown Canada from Crown P.E.I. The matter
should have been dealt with as was done in the
case of the 1954 expropriation. However since I
have found that the better view is that Areas A, B
and C were not included in the description in the
1937 expropriation it appears that neither title nor
administrative control was ever properly vested in
Crown Canada with respect to Area B.
Defendant's alternative argument however is to
the effect that there was no need for either expro
priation as this land always belonged to it by virtue
7 [1945] S.C.R. 385.
of accretion in any event. 8 This is rather a thin
reed on which to rest claim to title of land in which
Crown Canada now has no interest whatsoever. It
would be equitable and an act of good faith if
Crown Canada now carried out the agreements
entered into prior to the 1954 expropriation and by
Order in Council returned this land to Crown
P.E.I. with the clear understanding that Crown
P.E.I. would then return it to Mr. Shaw. The
question of whether Crown P.E.I. would do this,
on the basis of the contention that it was included
in the 1937 expropriation and, not being required
for the Park it should now be conveyed to Mr.
Shaw pursuant to section 7 of its National Parks
Act, or whether this would be done pursuant to the
agreements made before the 1954 expropriation
makes no difference in practice, and it is clear that
this Court cannot order Crown P.E.I. to take such
a step. The letter of Mr. Pierre Fortin, Special
Assistant to the Minister of Indian and Northern
Affairs of February 22, 1974, which finally
refused to do anything with respect to Mr. Shaw's
claim seems on a close reading to deal primarily
with Area C. It was written however before the
passage of the 1974 National Parks Act which
specifically excluded Area B from the description
of the park boundaries. In Mr. Fortin's letter he
states:
No lands are being excluded from the park through Bill S-4.
As would appear from reading the Schedule in the
Act this is not the case. He concludes:
If the original expropriation is contested it is our feeling that
the Federal Government should not be involved in the
proceedings.
This latter statement may well be quite correct
since it was Crown P.E.I. which carried out the
expropriations. The Crown P.E.I. (possibly quite
wrongfully) however refused Mr. Shaw a fiat in
connection with his claim by letter of January 27,
1972, on the basis that "the Provincial interest in
the land having been transferred to the Crown
(Federal) Mr. Shaw's claim should be made
against the Crown (Federal)." The fact that
Crown P.E.I. has refused to give plaintiff his day
in Court in connection with a claim against it does
not of course of itself give him any right which he
8 As previously stated if there was accretion it was, in any
event, to Crown P.E.I.
did not otherwise have against Crown Canada.
Having indicated what I believe should be done by
Crown Canada to rectify the situation the serious
question remaining is whether this Court can make
a declaration to that effect.
The question of declaratory relief was dealt with
in some detail by Mr. Justice Dickson in the recent
Supreme Court judgment of Solosky v. The Queen
[ 1980] 1 S.C.R. 821. The learned Justice states at
page 830 of that judgment:
Declaratory relief is a remedy neither constrained by form
nor bounded by substantive content, which avails persons shar
ing a legal relationship, in respect of which a "real issue"
concerning the relative interests of each has been raised and
falls to be determined.
Referring to the case of Russian Commercial and
Industrial Bank v. British Bank for Foreign Trade
Ltd. [1921] 2 A.C. 438 he quotes from the judg
ment of Lord Dunedin at page 448:
The question must be a real and not a theoretical question, the
person raising it must have a real interest to raise it, he must be
able to secure a proper contradictor, that is to say, someone
presently existing who has a true interest to oppose the declara
tion sought.
The problem here is that Crown Canada is prob
ably not the proper contradictor. Reference was
also made to the case of Pyx Granite Co. Ltd. v.
Ministry of Housing and Local Government
[1958] 1 Q.B. 554 in which Lord Denning stated
at page 571:
... if a substantial question exists which one person has a real
interest to raise, and the other to oppose, then the court has a
discretion to resolve it by a declaration, which it will exercise if
there is good reason for so doing.
The present proceedings do not specifically ask for
declaratory relief in any event. What they ask for
is either $2,000,000 or an order vesting the lands
taken in the 1954 expropriation and the 1937
expropriation, for which no compensation was
paid, in plaintiff. Such an order cannot be made
against Crown Canada and in any event I have
found that Area B was not properly included in
either expropriation. If this area was never proper
ly expropriated its title vested in either Crown
P.E.I. or in plaintiff and not in the present defend
ant. The case of Cox v. Green [1966] 1 Ch. 216
held that one of the principles on which the Court
would not make a declaration is a dispute which is
not a judiciable dispute. In the case of Thorne
Rural District Council v. Bunting [ 1972] 1 Ch.
470, Megarry J. stated at page 477:
I accept that the remedy by way of declaration is wide and
flexible, and that in recent years the tendency of the courts
towards width and flexibility has, if anything, been accentuat
ed; the remedy is indeed a valuable servant. But there must be
some limit. For myself, I am at a loss to see why a local
authority should be entitled to litigate a claim by A to rights of
common over B's land by suing A for a declaration when B,
who is the person most closely affected, is not even a party to
the proceedings. If the local authority loses, why should B have
his land encumbered by the consequent strengthening or appar
ent strengthening of an adverse claim over it which he might
well have been able to defeat had he taken part in the
proceedings?
While I can and have made a recommendation
as to what defendant should do with respect to
Area B this appears be be a matter for political
rather than legal decision. I do not believe this
Court can order the Crown to pass an Order in
Council to give effect to a previous undertaking. In
this connection I would refer again to the case of
The Attorney General of Canada v. Higbie
(supra) in which Rinfret C.J. at page 405 referred
to part of a quotation from the case of Theodore v.
Duncan [1919] A.C. 696 at 706 in which Viscount
Haldane stated in connection with the exercise of
discretion by Ministers of the Crown:
With the exercise of that discretion no Court of law can
interfere so long as no provision enacted by the Legislature is
infringed. The Ministers are responsible for the exercise of their
functions to the Crown and to Parliament only, and cannot be
controlled by any outside authority, so long as they do nothing
that is illegal.
With regret therefore I cannot in these proceed
ings order that the necessary steps be taken to
confirm the title which plaintiff asserts to the area
designated as B or alternatively to convey such
title to him. This leaves the situation with respect
to ownership or even possession of Area B indefi
nite and uncertain, and that can only be corrected
as I suggested by both Crown Canada and Crown
P.E.I. taking the necessary steps to put into effect
the agreements entered into in good faith by all
parties in 1954. The Court cannot order this how
ever so that plaintiff's action must be dismissed,
but without 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.