City of Victoria v. MacKay, (1918) 56 SCR 524

Supreme Court of Canada.

City of Victoria v. MacKay, (1918) 56 S.C.R. 524

Date: 1918-05-14

The City Of Victoria Appellant;

and

Frances J. Mackay Respondent.

1918: May 7, 8; 1918: May 14.

Present: Sir Charles Fitzpatrick C.J. and Davies, Idington, Anglin and Brodeur JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA.

Statute—Interpretation—Directory or mandatory provision—By-law—Publication.

By s.s. 142, s. 50, of the "Municipal Clauses Act" of British Columbia, it is stipulated that "every by-law passed under the provisions of this sub-section shall, before coming into effect, be published in the British Columbia Gazette and in some newspaper published in the municipality."

Held, Fitzpatrick C.J. and Brodeur J. dissenting, that this provision is mandatory and not merely directory and the publication of the by-law is a necessary condition to its validity.

Per Fitzpatrick C.J. and Brodeur J.:—The by-law is valid whether published or not, but it shall be published before coming into effect.

APPEAL from the judgment of the Court of Appeal for British Columbia ^[1] rendered upon a special case stated by arbitrators in expropriation proceedings between the appellant and the respondent.

The material facts of the case and the questions in issue are fully stated in the above head—note and in the judgment now reported.

C. A. McDiarmid for the appellant.

H. H. MacLean K.C. for the respondent.

THE CHIEF JUSTICE (dissenting):—The city, for the purpose of a street improvement, passed a by-law on the 29th May, 1910, for the expropriation of certain land belonging to the respondent. All necessary proceedings were taken, except that the by-law was not

[Page 525]

published, nor registered, in the Land Registry Office in the district in which the land is situate, as provided for in sec. 50, sub-sec. 142 of ch. 32 of the statutes of B.C., 1906.

Three arbitrators were duly appointed to determine the compensation payable to the respondent, and having heard the evidence and counsel for both parties they made an award, subject to the opinion of the court, whether the city was liable to pay the compensation.

The city from motives of economy desires to abandon the intended scheme of improvement and has set up as a ground of non-liability to pay the compensation, the fact that the by-law was never published as aforesaid.

The concluding sentence in sub-sec. 142 of sec, 50 is all that is material, and it reads:

Every by-law passed under the provisions of this sub-section shall, before coming into effect, be published in the British Columbia Gazette and in some newspaper published.in the municipality.

The contention on behalf of the appellant is that this means that the by-law shall not become effective until such publication has been had, in other words, that the statute must be read as if it had said:

No by-law passed under this sub-section shall come into effect until it has been published, etc.

I do not think this is a legitimate or even possible interpretation of the meaning of the words used. I think they necessarily contemplate the coming into effect of the by-law whether published or not and they only direct that before it does come, into effect it shall be published. This seems to me the natural .interpretation to put upon the words used, and not only reconciles the sub-section with section 86, but is just what we should expect in view of the provisions of that section, which provides that

[Page 526]

every by-law passed by the council of any municipality * * * shall be registered in the County Court * * * and such by-law shall take effect and come into force and be binding on all persons as from the date of such registration.

It would require clear words to override this absolute and general provision and we have not got them because it is perfectly possible to read sub-section 142 as if after the words

before coming into effect

there were added

as by section 86 hereinbefore provided.

There is no validity in the claim advanced by the appellant that the upholding of the award would be a hardship to the local property improvement owners, which the quashing of it certainly would be to the respondent. The expropriation was made by the representatives of the former and must be considered as if it were their own act: Moreover, it is a salutary rule in the courts that private individuals ought to be protected from oppression at the hands of corporations with whom they have to contend on such unequal terms. A corporation is vested with the extreme power of expropriating private property only in the necessary interests of the public, and it certainly would be oppressive if it could take all necessary proceedings so far as the owner dispossessed is concerned and then avoid payment of the compensation.by pleading its own neglect to observe procedure directed by the statute the due observance of which can hardly be a matter that individual owners are under obligation to ascertain or even to have knowledge of. Nowell v. Worcester^[2]; Maxwell on Statutes, 5th ed., p. 598, says: When nullification would involve general inconvenience or injustice to innocent persons, or advantage

[Page 527]

to those guilty of the neglect, without promoting the real aim or object of the enactment, such an intention is not to be attributed to the legislature.

DAVIES J.—This was a special case stated by arbitrators for the decision of the court and the question was whether, under the special facts as stated by them, they had power to make an award of compensation for lands of the respondent alleged to have been expropriated by the city under a by-law passed by the council for a proposed widening of a public street.

The decision of the trial judge, Mr. Justice Murphy, was that the arbitrators had such power—that the city was liable to pay the compensation awarded.

On appeal the court was equally divided and the judgment of the trial judge accordingly stood.

I think this appeal must be allowed and that the question submitted should be answered that the arbitrators had no power to make an award of compensation because the by-law authorizing the widening of the street and the necessary expropriations therefor had never been published.

The determination of the question submitted depends upon the construction of sub-sec. 142 of sec. 50 of "The Municipal Clauses Act, 1906," empowering municipal councils from time to time to make, alter and repeal by-laws on a number of specified subjects.The question is whether sub-sec. 142 of sec. 50 was merely directory in its provisions, as to publication of a by-law, or was mandatory. I have no hesitation in reaching the latter conclusion and in holding that publication is essential to make a by-law under that sub-section valid. The latter part of the section provides:—

[Page 528]

Every by-law passed under the provisions of this sub-section shall, before coming into effect, be published in the British Columbia Gazette and in some newspaper published in the municipality, or if no newspaper is published in the municipality, then in a newspaper circulating in the municipality, and a certified copy thereof shall be filed in the Land Registry Office of the district in which the land affected by the by-laws is situate.

I cannot think of language which would more clearly carry out the evident intention of the legislature than that used. It provides that

before coming into effect

every by-law passed under the provisions of the subsection should be published in the way and manner provided. Publication was made a condition precedent to the by-law coming into effect.

The 5th section provided (inter alia) for the establishing, opening and widening of roads, streets, squares, etc., and for expropriating, taking, or using any real property in any way necessary or convenient for any of the specified purposes without the consent of the owners.

It was not the owners alone who were interested in the exercise of the powers granted to the corporations in this section. The great body of the municipal ratepayers who had to pay the moneys necessary to carry out the improvements mentioned were interested, and it was no doubt to bring to their notice before it became valid any by-law passed by the municipal council under the sub-section that the language was used providing that "before coming into effect" the by-law should be published as provided.

For us in this court to say that any by-law passed under this sub-section was valid before and without publication, where the legislature has said that "before coming into effect" it must be published, seems to me to amount to legislation on our part and

[Page 529]

not simply construction of legislation enacted by the proper authority.

I would allow the appeal with costs.

IDINGTON J.—The question raised by this appeal turns upon the meaning or want of meaning to be found in sub-sec. 142 of sec. 50 of the "Municipal Clauses Act" of British Columbia, passed in 1906.

Said section 50, which evidently was intended to define with great particularity the subjects respecting which a municipal council might make by-laws and the limitations of power it might so exercise, reads as follows:—

50. In every municipality the council may, from time to time, make, alter and repeal by-laws for any of the following purposes or in relation to matters coming within the classes of subjects next hereinafter mentioned, that is to say:—

There follow this introductory enactment one hundred and ninety sub-sections, of which sub-section 142 is as follows:—

 (142) For establishing, opening, making, preserving, improving, repairing, widening, altering, diverting or stopping up roads, streets, squares, alleys, lanes, bridges, or other public communications within the boundaries of the municipality or the jurisdiction of the council, and for entering upon, expropriating, breaking up, taking or using any real property in any way necessary or convenient for the said purposes without the consent of the owners of the real property, subject to the restrictions contained in sections 251 and 252 of this Act. Every by-law passed under the provisions of this sub-section shall, before coming into effect, be published in the British Columbia Gazette and in some newspaper published in the municipality, or if no newspaper is published in the municipality, then in a newspaper circulating in the municipality, and a certified copy thereof shall be filed in the Land Registry Office of the district in which the land affected by the by-law is situate.

It has been held below that the last sentence of this sub-section was merely directory and hence null.Those so holding do not use this language, but I respectfully submit that is the effect of the decision,

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if allowed to stand. In short the imperative words therein

shall before coming into effect

are given no effect to.

The sentence in which these words occur was an amendment to the "Municipal Act" in 1903. If intended to be entirely directory it should never have contained these words. As a purely directory enactment, having nothing in the way of sanction to secure its observance, once these words are deleted, it would stand as a unique piece of legislation.

In argument I pressed counsel for respondent to suggest any possible purpose the legislature could have had in view in such an enactment if the argument that these words were not to be given, any operative force should stand good. I am yet without any explanation or suggestion of anything the legislature could have had in view if the words in question were not to be given any effect.

I think the plain ordinary meaning of the language used requires us to say that the by-law, so called, now in question, which has been acted upon, never was effective as a by-law and never should have been acted upon or given any appearance of vitality.

It seems idle to disregard the scope and purpose of section 50 expressly designed to define the exact limitations and conditions to be observed in exercising effectively the by-law making power, and rely upon section 86 of the Act appearing among others under the caption "Passage, and Authentication of by-laws" which deals with filing of by-laws in the County Court and incidentally uses the words:—

shall take effect and come into force and be binding on all persons as from the date of such registration, etc.

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and treat these words because now in same statute as predominant over any others therein. Surely it was quite competent for the legislature to impose any terms it chose to declare as preliminary to any by-law becoming effective. And if section 86 at first blush is misleading and puzzling when we find the restriction in sub-sec. 142 of sec. 50 was enacted as an amendment thereto, long after section 86 had stood as law with the words just quoted, we must doubtless conclude the amendment was designed to restrict all else, including, if necessary, this older section 86 in its operation so far as related to by-laws of the class named in sub-section 142.

To test that reasoning further and see if this language used in section 86 can be applied in the way suggested, instead of presupposing any by-law it refers to as an already effective and valid by-law, let us follow the subject under the caption of "Quashing by-laws," as found in section 89 et seq., and see where it would land us.

We find that so-called by-laws registered in the County Court may possibly have been null and void and liable therefore to be quashed.

The reading of section 86 in the imperative and wide sense urged upon us by counsel for respondent as absolutely effective, would render it impossible to quash any by-law no matter how absurdly beyond the competence of the council, once it got registered in the County Court.

The mere statement of such a proposition shews how untenable it is.

The language used in section86, relied upon herein for respondent, evidently does not and never was intended to mean that whatever form of by-law is filed in the County Court it is effective.

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Publicity, and the furnishing of an accessible record, fixing the starting point of time when, but not before, any by-law might become effective, would seem to have been the purpose of enacting section 86, requiring registration in the County Court of all by-laws which had passed through certain named formalities.

Whatever the object to be accomplished thereby, or however clumsy and inapt the language used, matters little for our present consideration.

It seems very clear that the amendment of section 142 by adding the provision now therein for publication and registration of any of the by-laws of the class named therein in the Land Registry Office, was intended to fit the law to the reasonable needs of those concerned in their dealings with real estate, affected by such by-laws, and render it quite safe for them to rely upon the real estate record alone.

The absurdity of requiring such persons to watch the County Court Office instead of the usual record in the Land Registry Office was put an end to by the amendment and doubtless was so intended.

With great respect I submit it was not merely directory but imperative in its terms, and constituted a much needed condition precedent to the operation of any by-law of the class in question.

And if regard had been paid by respondent to its terms she need not have appointed an arbitrator and brought all the trouble that has followed the doing so upon herself.

The appellant has done no wrong to any one by refraining from proceeding to the publication and registration and thereby abandoning its project when found improvident.

The clerk of the municipality may have erred in

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sending the notice he did, but five years' lapse of time should have suggested it was a mere error.

The legislature also may have erred in letting such a curiosity as section 86 presents stand in its present shape.

I submit, however, none of these things present any reasonable ground for our punishing other owners of real estate by depriving them of the protection of a beneficent amendment to the law.

That amendment never having been observed the question submitted by the arbitrators should be answered in the negative.

I therefore think the appeal should be allowed with costs throughout.

ANGLIN J.—At the threshold of this appeal we are confronted with the contention that this proceeding should not be entertained because the validity of the submission and of the appointment of the arbitrators and their authority, which they have seen fit to make the subject of "a special case for the opinion of the court," declaring their award to be conditional upon their right to make it being upheld, is not a

question of law arising in the course of the reference

within the meaning of sec. 22 of the "Arbitration Act," R.S.B.C., 1911, ch. 11. I rather incline to the view that it is not. From the fact, however, that there is no allusion whatever to this objection in the judgment delivered in the provincial courts, or in the factums filed here, I infer that it was not raised below. Counsel for the respondent took it in this court only after he had fully presented his argument on the merits, and had some reason to think the court was not in his favour. Since the result of deciding that the objection to the status of the special case should prevail might be that

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the condition which the arbitrators have attached to their award would alone be held bad and the award itself in favour of the respondent, shorn of that condition, absolute, it will probably be better, under the circumstances, to deal with the question submitted on the assumption that it is properly before the court. That question is whether the publication and the filing in the Land Registry Office of by-laws of the special class within it, which sub-sec. 142 of sec. 50 of the "Municipal Clauses Act," 1906, ch. 32, prescribes shall take place

before (their) coming into effect,

are thereby made conditions of their efficacy, or whether this is merely a directory provision, non-compliance with which does not render such by-laws invalid or prevent their being in force.

The by-law was passed in May, 1911. Notice of expropriation was given in June. The respondent promptly presented her claim for compensation, which was rejected; and the council named an arbitrator. No further action was taken until 1916 when the respondent also named an arbitrator, and a third arbitrator was named either by the two, as stated by the appellant, or by a Judge of the Supreme Court, as averred by the respondent. The city's representatives appear to have taken part in these proceedings without protest. When the arbitrators first met, however, the city took exception to their jurisdiction on the ground of the invalidity of the expropriation by-law. The arbitrators nevertheless proceeded and published a conditional award in March, 1917.

If sub-sec. 142 stood alone I agree with the learned Chief Justice of the Court of Appeal that

its construction would be simple enough. It might very well be read as making publication a condition precedent to the coming into force of the by-law.

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Indeed I think it would admit of no other construction. Is there anything in the history of the legislation which tends either to confirm this as the proper construction of the clause added in 1904 to sub-sec. 142 (formerly sub-sec. 127) of sec. 50 or to render it improbable that such a construction was intended? Is there anything in the context of the statute which clearly requires that a different construction be placed upon that clause?

The question is one of intention. The history of the legislation—the provision of the Revised Statute of 1897 (ch. 144, sec. 83) prescribing that every by-law passed by any council

shall come into effect, and be binding on all persons after publication of the same in the British Columbia Gazette and in some one or more of the newspapers selected by the council and circulating in the municipality;

the substitution in 1902 (2 Ed. VII., ch. 52, sec. 22) for such publication of registration in the office of the County Court with like consequences; and the revival in 1904 (3 & 4 Ed. VII., ch. 42, sec. 9) in the terms in which it is couched of the requirements as to publication, apparently because greater publicity than registration in the office of the County Court would afford was found to be necessary or desirable in the case of the by-laws specially dealt with in sub-sec. 127 of sec. 50 of the "Municipal Clauses Act" (R.S.B.C., 1897, ch. 144)—in my opinion, makes it reasonably obvious that the legislature meant to impose such publication and filing in the Land Registry Office as conditions of the validity and efficacy of such by-laws.

No doubt the provision of section 86 of the " Municipal Clauses Act," 1906, applicable to all by-laws,—that they shall be registered in the office of the County Court, and,

shall take effect and come into force and be binding on all persons from the date of such registration—

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presents a difficulty of construction. I think that difficulty is to be met, however, and the intention of the legislature carried out rather by treating sub-sec. 142 of sec. 50 as creating a condition (as its language imports) which the legislature assumed would have been already complied with, in the case of by-laws to which it relates, before section 86, which occupies a later position in the statute, would be acted upon, than by straining the language of sub-section 142 in order to make of it not the imposition. of a condition, but a mere direction as to the time at which publication and filing in the Land Registry Office should take place, i.e., before registration in the office of the County Court, treating that as the time of

the coming into effect,

of by-laws within sub-section 142. No other provision of the statute is referred to as presenting any difficulty. I find nothing therefore in the context which requires or justifies a refusal to give to sub-section 142 the effect that its terms indicate was intended.

This case appears to be distinguishable from Nowell v. Mayor of Worcester^[3], and Montreal Street Railway Company v. Normandin^[4], much relied upon by the respondent. In the Nowell Case^[5] a statute was held directory chiefly because, as put by Pollock C.B.

no means are given them (the contractors with the municipality) of ascertaining the fact

whether the prescribed duty had or had not been fulfilled.

"How are the plaintiffs who contracted to do work for the corporation," asks Baron Parke, "to get information as to whether a report has been made by their surveyor?"

Here the failure to publish and to file in the Land Registry Office could easily have been ascertained by

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any person. In the Normandin Case^[6] general inconvenience would have resulted from holding the neglect of the prescribed duty fatal and the main object of the legislature would not have been thereby promoted. Here, so far as appears, the respondent alone will be adversely affected by holding the by-law to be invalid and the main object of the legislature, which was to secure further publicity, might be frustrated were the provision in question to be treated as merely directory. The section does not designate an official to discharge the duty imposed and no sanction is provided to ensure its fulfilment.

Moreover, the statute with which we are dealing empowers taxation as well as an exercise of eminent domain. On both grounds a strict compliance with the terms in which it authorizes the exercise of the rights conferred may properly be exacted.

I am further of the opinion that no conduct of the municipal council or of its officials can have the effect of rendering binding steps taken under a by-law subject to an unfulfilled condition such as that imposed by the amendment of 1904, or can estop or preclude the municipal corporation from setting up the consequent invalidity of the by-law in any proceeding in which it is sought to enforce it or to compel its being carried out. It would be quite too dangerous to permit conditions imposed by statute to be thus evaded. To-day it is the municipal corporation which urges that noncompliance with the terms of its statutory authority renders its by-law ineffective: to-morrow a taxpayer or a landowner may have occasion to press a like objection. In either case the construction of sub-section 142 and the effect of the omission to carry out its requirements must be the same.

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I say nothing as to any possible right of action that any person injuriously affected by an attempt made by the municipal corporation or any of its officers to carry out —or act upon such an invalid by-law may have.

Counsel for the respondent further contended that, assuming the invalidity of the by-law, the arbitration proceedings and the award of compensation to his client might nevertheless be supported under section 251 of the "Municipal Clauses Act" of 1906, ch. 32. But that section deals with the making and ascertainment of compensation for lands taken or injuriously affected

by the corporation in the exercise of any of its powers.

The power to take or injuriously affect land for, inter alia, the widening of a highway is conferred by sub-sec. 142 of sec. 50 of the same Act, and the means thereby prescribed for the exercise of that power is the enactment of a by-law according to the terms, and subject to the conditions which it and other sections of the statute impose. That is the power which the council ineffectually sought to exercise. If it possessed any other it did not attempt to use it. A valid and effectual exercise of a power to take or injuriously affect land is the foundation upon which proceedings under sec. 251 must rest. Without that foundation such proceedings are unauthorised and ineffectual.

I am, for these reasons, with respect, of the opinion that this appeal should be allowed.

BRODEUR J. (dissenting)—I concur with His Lordship the Chief Justice.

Appeal allowed with costs.

Solicitor for the appellant: F. A. McDiamid.

Solicitors for the respondent: Elliot, MacLean & Shandley.