Montreal v. ILGWU Center Inc. et al., [1974] SCR 59

Supreme Court of Canada

Montreal v. ILGWU Center Inc. et al., [1974] S.C.R. 59

Date: 1971-10-05

La Ville de Montréal (Defendant) Appellant;

and

ILGWU Center Inc. (Plaintiff) Respondent;

and

Public Service Board and La Régie de la Place des Arts Mises-en-cause.

1971: February 8; 1971: October 5.

Present: Fauteux C.J. and Abbott, Ritchie, Hall and Pigeon JJ.

ON APPEAL FROM THE COURT OF QUEEN’S BENCH, APPEAL SIDE, PROVINCE OF QUEBEC

Municipal law—Real estate tax—Power to grant exemption conferred by the Legislature—Discrepancy between French and English versions—Expropriation—Interpretation of municipal resolutions—Compensation for loss of tax exemption—Right not lost by homologation of award for property only.

By a provision of the Act to amend the Charter of the City of Montreal, assented to in 1954, the Legislature conferred to the latter the power to grant the plaintiff ILGWU an exemption from the ordinary and annual real estate tax on “the actual and future lands and buildings of the ILGWU Center Inc., on Plateau Street”, provided these are used in whole for administrative, medical, educational or cultural purposes. The City Council availing itself of the aforementioned power adopted in 1954 a resolution granting an exemption which was in general terms and not limited to lands on Plateau Street.

In 1961 the property was expropriated. The Public Service Board set compensation but held that it did not have jurisdiction to decide on the damages resulting from the loss of an exemption from municipal taxes. The respondent then erected a building on the lot it had bought on Concord Street. The City considered that the property on Plateau Street only had the benefit of tax exemption.

In 1963, the Legislature enacted, in the Act to amend the Charter of the City of Montreal, a provision replacing the 1954 enactment and authorizing the City to grant the respondent an exemption from the ordinary and annual real estate tax on “the actual and future lands and buildings of the ILGWU Center Inc., on Concord Street”. However the City authori-

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ties did not see fit to make use of this new power. This led to the declaratory action instituted by the respondent asking that the exemption from taxes granted in 1954 be declared applicable to the property on Concord Street; and subsidiarily, that the expropriation record be returned to the Public Service Board for assessment of compensation for the loss of the exemption, or alternatively, that an amount be awarded by the Court.

The Court of Appeal affirmed the judgment of the Superior Court granting the primary conclusion. Hence the appeal to this Court.

Held (Fauteux C.J. dissenting in part): The appeal should be allowed.

Per Abbott, Ritchie, Hall and Pigeon JJ.: The respondent could not be exempt from taxes for the property on Concord Street under the statute and resolution of 1954. A municipal corporation cannot grant tax exemption except where a statute exceptionally permits it. In this case the 1954 statute authorized such action only for “the actual and future lands and buildings of ILGWU Center Inc., on Plateau Street”. The 1954 resolution does not extend the scope of this legislative provision and could only be valid if it impliedly contained the limitation laid down by the statute. Therefore after the expropriation, the 1954 resolution lapsed.

In the resolution as in the statute, the words “actuels et futurs” (actual and future) qualify only the word “bâtiments” (buildings); hence, semble, the exemption was only for the land which the respondent had at that time, and the actual and future buildings thereon, although the English version seems to provide otherwise.

Regarding the 1963 statute, it authorizes the municipal council to grant an exemption; it is not a ratification or validation. The City Council has never repealed the 1954 resolution, but this cannot be looked upon as a decision to implement the 1963 authorization rather than the 1954 authorization. The amendment made by the 1963 Act is a replacement, a change of substance, a new authorization conferred by the Legislature to grant a new exemption. The city has chosen not to exercise it. For these reasons the respondent’s primary conclusion cannot be maintained.

As to the exemption from taxes, it is an important advantage of which the respondent has been definitively deprived as a consequence of the expropriation, the City of Montreal having never, it seems, withdrawn an exemption so granted. If not expro-

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priated, the respondent would never have ceded its property without compensation for the loss of the exemption. No reason was shown for not regarding the loss in question as resulting from the expropriation.

As regards the Public Service Board, it has failed to exercise its jurisdiction to determine the compensation due to the respondent for the loss of the exemption. In these circumstances the homologation of its decision does not have the effect of depriving the respondent of the right to demand that the Public Service Board be ordered to exercise its jurisdiction when it has failed to do so.

Per Fauteux C.J. dissenting in part: The main conclusion of respondent’s action cannot be allowed. If the text of the 1954 Act describing the intended property is read as a whole, as it should be, and not split up, it appears clear and unequivocal that the words “actual and future” qualify only the word “buildings” on the site in question.

As to compensation for loss of exemption, the benefit of exemption does not, in this case, constitute an advantage of the nature of those which must be taken into account with the market value of the expropriated property in assessing the aggregate value which such property represents to the individual divested of it. It was an advantage wholly personal to respondent, which the elected municipal administration could legally grant, withdraw, or simply refuse to respondent, in its discretion and when it saw fit, even though the statutory conditions to which this advantage was subject may have been met. Furthermore, the loss of this advantage is not attributable to the fact of expropriation.

APPEAL from a judgment of the Court of Queen’s Bench, Appeal Side, Province of Quebec[1], affirming a judgment of the Superior Court. Appeal allowed, Fauteux C.J. dissenting in part.

P. Normandin, Q.C., for the defendant, appellant.

J.J. Spector, Q.C., and C. Spector, for the plaintiff, respondent.

Y. Denault, for the mises-en-cause.

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THE CHIEF JUSTICE (dissenting in part)—This appeal is by the City of Montreal from a decision of the Court of Appeal confirming a judgment of the Superior Court, which held respondent exempt from the ordinary and annual real estate tax. The decisions by the two Courts are based on the interpretation given to certain legislative provisions.

The circumstances giving rise to the action may be briefly stated.

By s. 20 of the Act to amend the Charter of the City of Montreal, 2 Eliz. II, c. 66 (assented to in February 1954), the Quebec Legislature conferred on the City the power to grant respondent an exemption from the ordinary and annual real estate tax on “the actual and future lands and buildings… on Plateau Street, northwest corner of Jeanne Mance,” provided these are used in whole for the administrative, medical, educational or cultural purposes of respondent. Section 20 reads as follows:

20. The city is authorized to enact, by resolution of its council upon report of the executive committee, that the actual and future lands and buildings of the ILGWU Center Inc., on Plateau Street, north-west corner of Jeanne-Mance, shall be exempt from the ordinary and annual real estate tax inasmusch as same are used, in whole, for administrative, medical, educational or cultural purposes, for the International Ladies Garment Workers Union.

It should be noted that when the 1954 Act was passed, construction of the buildings undertaken by respondent on Plateau Street was not completed.

On May 6, 1954, the City availed itself of the aforementioned power, and to this end adopted a resolution the wording of which, however, went beyond that of the 1954 Act, in that the exemption granted was general as to the site of the lands and buildings, and not limited to those on Plateau Street, north-west corner of Jeanne Mance.

In 1961 the Sir Georges-Etienne Cartier Center, a legally constituted corporation which was succeeded by La Régie de la Place des Arts, a mise-en-cause in this case, expropriated

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respondent’s property on Plateau Street for the construction of Place des Arts. The decision to build Place des Arts at this location was taken by the Board of Directors of the Sir Georges‑Etienne Cartier Center—of which the Mayor of Montreal was a member—with the authorization of the provincial and municipal authorities. Divested of its property on Plateau Street, north-west corner of Jeanne Mance, respondent found a new site on Concord Street, where it bought a lot, erected a building and established itself. The municipal assessment for this new site was established by the City appraiser, and tax statements sent to respondent. On receipt of these statements, respondent invoked the tax exemption allowed it by the resolution of May 6, 1954, claimed it owed nothing, and eventually paid under protest. The City did not accept this position. In its view, the resolution of May 6, 1954, like the Act of February 1954, referred only to the property on Plateau Street, northwest corner of Jeanne Mance, and none other. Eventually, in a letter written to the Director of Departments of the City on October 3, 1962, respondent requested the City to insert, in the amendments which it intended shortly to ask the Legislature to make to its charter, an amendment deleting the words “on Plateau Street, north-west corner of Jeanne Mance”, from s. 20 of the February 1954 Act. One must realize that the effect of such an amendment would be to grant respondent the benefit of a tax exemption, regardless of the location of its property. The City did not intend to submit this amendment itself, and the Director of Departments merely indicated, in his letter of February 8, 1963, in reply to respondent’s request, that the Executive Committee of the City saw no objection to respondent’s making request to the Legislature itself. Subsequently, i.e. in April 1963, the Legislature, in the Act to amend the Charter of the City of Montreal, 11-12 Eliz. II, c. 70, enacted the following in s. 60:

60. Section 20 of the act 2-3 Elizabeth II, chapter 66, is replaced by the following:

“20. The City is authorized to enact, by resolution of its council upon report of the executive

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committee, that the actual and future lands and buildings of the ILGWU Center Inc., on Concord Street, shall be exempt from the ordinary and annual real estate tax so long as they are used entirely for administrative, medical, educational or cultural purposes, for the International Ladies Garment Workers Union.”

The City did not, however, see fit to avail itself of this new power, and adopted no resolution, though enabled to do so by this 1963 Act.

This eventually led to the declaratory action instituted by respondent against the City, the Régie de la Place des Arts and the Public Service Board being mises-en-cause pour voir dire et déclarer and to comply with the judgment of the Court.

In this action, respondent asks the Court, firstly, to hold that the tax exemption which the City granted it in the resolution of May 6, 1954, covers the lands and buildings on Concord Street as well as those which it had on Plateau Street, north-west corner of Jeanne Mance, before the expropriation. Alternatively, and only in the event that this claim is disallowed, respondent asks the Court (1) to direct that the expropriation file be returned to the Public Service Board—which had already set compensation for the land and buildings on Plateau Street—for the awarding of compensation for loss of the tax exemption, or (2) alternatively, asks the Court itself to award damages of $175,000 for such loss. It will be noted that this alternative claim for compensation, or, alternatively, damages, implies that respondent would be entitled to compensation or damages should its main claim be disallowed.

The Superior Court allowed respondent’s first claim. Interpreting the provisions of s. 20 of the 1954 Act, it held that [TRANSLATION] “when the legislator spoke of ‘future’ lands and buildings, it was referring only to lands and buildings situated elsewhere than on Plateau Street, north-west corner of Jeanne Mance”. In the view of the trial judge, s. 60 of the 1963 Act has

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no other purpose than to ratify the resolution of May 6, 1954, and eliminate any doubt as to the validity of this resolution, which has never been revoked and, according to the Court, is still in force.

The Court of Appeal confirms this interpretation by the Superior Court, relying especially on the provisions of s. 41 of the Interpretation Act R.S.Q. 1964, c. 1, which enacts:

41. Every provision of a statute, whether such provision be mandatory, prohibitive or penal, shall be deemed to have for its object the remedying of some evil or the promotion of some good.

Such statute shall receive such fair, large and liberal construction as will ensure the attainment of its object and the carrying out of its provisions, according to their true intent, meaning and spirit.

Applying the provisions of this section, it is held that it must be considered that [TRANSLATION] “mention of the site, ‘on Plateau Street,’ is unimportant.”

Thus, in allowing the respondent’s main claim the Court of Appeal, like the Superior Court, did not have to concern itself with the alternative claim.

Hence the appeal to this Court.

It is a rule that the burden of taxation must be borne equally by all, and that it is the responsibility of anyone claiming the exceptional benefit of an exemption to establish that the competent legislative authority, in clear and unequivocal language, has unquestionably granted him the exemption claimed.

To decide on respondent’s claim in the present case we need only refer to the wording of s. 20 of the Act of February 1954. Indeed, it is not necessary to refer either to the resolution adopted by the City, on May 6, since municipalities have no powers other than those conferred on them by the competent legislative authority, or to the 1963 Act, since the City did not see fit to avail itself of the power conferred on it by this Act.

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Firstly, it should be noted that the provisions of s. 20 of the 1954 Act—and also those of the new s. 20 of the 1963 Act—have for sole purpose to empower the City to grant respondent the benefit of a tax exemption, in the case specified by the Legislature, if and when the City Council shall see fit. The Legislature has thus left it to the municipal administration pro tem to decide; accordingly, it is difficult for me to see how the provisions of s. 41 of the Interpretation Act can have any relevance or assist in deciding the case at hand. In effect, the fundamental reason for the above-mentioned decision in both Courts is that, having referred to that part of s. 20 in which the Legislature describes the object of the authorized exemption as “the actual and future lands and buildings … on Plateau Street, north-west corner of Jeanne Mance”, the first part of the description only was considered to decide that the words “actual and future” qualified the lands as well as the buildings and therefore, the latter part of the description, wherein the site of the property concerned is specified by the Legislature in the 1954 Act—as, moreover, it was subsequently specified in the 1963 Act, notwithstanding the amendment then suggested to the City by respondent—must have been logically regarded as an unimportant reference.

The legislator is presumed to mean what he says; and there is no need to resort to interpretation when the wording is clear, as it is in this case. Indeed, while one can conceive of actual and future “buildings” of which the site is specified, as in s. 20, one can hardly conceive of actual and future “lands” on lands already so identified. Thus if the text describing the intended property is read as a whole, as it should be, and not split up, it appears clear and unequivocal that the words “actual and future” qualify only the word “buildings” on the site in question, more especially as we are dealing with a legislative provision which may produce effects in the future as in the present, and it is thus compatible with both the spirit and the letter of this provision that these qualifying words

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should apply to incomplete, completed or still to be erected buildings on Plateau Street, northwest corner of Jeanne Mance, and not to any location whatever in the city.

Viewed in this light, it follows that any resolution which the City could validly adopt under and within the terms of s. 20 of the 1954 Act became without object as of the day on which respondent was divested of its property on Plateau Street, north-west corner of Jeanne Mance. The fact that the City did not expressly rescind its resolution of May 1954 is not important. A legal provision does not have to be enacted to rescind what has already become void through caducity. Nor can I accept as well-founded the contention that the intent of the 1963 Act was to ratify the resolution of May 1954, since this new statute gives the City the power to adopt a resolution regarding the property acquired by respondent on Concord Street in February 1962. It is thus a statute which can produce effects only in the future as regards the new property of respondent. I might add, finally, that if, contrary to the views just expressed, we were to conclude that the provision of s. 20 of the 1954 Act was not clear, but open to ambiguity, we would also have to conclude that respondent has not shown, as it had the burden of doing, that by clear and unequivocal words, the Legislature, in the 1954 Act, unquestionably empowered the City to grant it the exemption claimed as regards the Concord Street site.

For these reasons, and which all due respect for the contrary view, I would say that in my opinion the main conclusion of respondent’s action cannot be allowed.

As for the alternative conclusions, as already indicated they imply that in the event the main conclusion is dismissed, respondent would be entitled to compensation to be fixed by the Public Service Board, or alternatively, to damages to be set by the Court in the amount of $175,000. Indeed, in its factum respondent goes further and asks this Court to direct that the

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City itself pay it these damages, which it now fixes at $182,900.

With all respect I cannot find legal grounds in support of the claim that respondent is entitled, in the case at hand, to compensation or damages properly so-called, because of the fact that the City did not grant it, for the property on Concord Street, the benefit of exemption from the ordinary and annual real estate tax that it had granted for the property on Plateau Street, north-west corner of Jeanne Mance.

In my opinion such a benefit does not, in this case, constitute an advantage of the nature of those which must be taken into account with the market value of the expropriated property in assessing the aggregate value which such property represents to the individual divested of it. The advantages referred to in the jurisprudence are based on the expropriated property from which, in the last analysis, they are derived, as for instance the potential of such property, its adaptability, its site, its proximity to markets for products, or its proximity to places where the necessary labour is available. The advantage which the City was empowered to grant, and which, under the 1954 Act, it did grant to respondent, was not derived from the lands and buildings on Plateau Street, north-west corner of Jeanne Mance, although it did concern them. It was an advantage wholly personal to respondent, which the elected municipal administration could legally grant, withdraw, or simply refuse to respondent, in its discretion and when it saw fit, even though the statutory conditions to which this advantage was subject may have been met.

Furthermore, the loss of this advantage is not, in my opinion, attributable as claimed by the respondent to the fact of expropriation, which undoubtedly was the occasion, but, as appears from the evidence, to the policy adopted and followed in relation to tax exemptions under the administration of which Mayor Drapeau was a member. In fact, the resolution of May 1954 was adopted before this administration assumed

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office, as is indicated by the following extract from the testimony of Mayor Drapeau, whom respondent itself called as a witness:

[TRANSLATION] A. I was aware of this exemption, but I was not in City Hall, I was not serving on City Council in any capacity when the exemption was granted. It was before my first (1st) term from nineteen fifty-four (1954) to nineteen fifty-seven (1957)—I say the term from nineteen fifty-four (1954) to nineteen fifty-seven (1957), because I was sworn in in November nineteen fifty-four (1954), but the first (1st) meeting of the Council which was held to study an agenda drawn up by the administration of which I was a member took place in December nineteen fifty-four (1954), a statutory meeting, and then the agenda for the remaining meetings in nineteen fifty-five (1955) were drawn up by the administration of which I was a member.

It is worth citing this part of the examination-in-chief of this witness, with respect to the actual policy of the administration:

[TRANSLATION] Q. If the plaintiff had not been forced to move, would it have retained its exemption? A. Very likely, because I don’t remember any case of an exemption which the City terminated, because if it was conferred under the Act, we went by the Act, just as we felt bound by prior decisions of the Council; but from the time that we were responsible for taking action, for making a decision which could become a precedent for our administration, on which other applications for exemption would be based, we applied to that case the policy we applied to all: we said, we are sorry but we are not granting the exemption.

Q. Then you treated the exemption on Concord Street like a new application for exemption? A. We considered it …it was.

Q. A new one? A. It was a new application for exemption.

Q. It was not the old exemption already existing, it was a new application and you decided not to allow it? A. We decided to allow no applications for exemption, and as this application fell

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into the category of applications we were refusing, we did not see fit to make an exception to our policy, we carried out the general decision not to grant exemptions.

And further on the witness repeated:

[TRANSLATION] A. It was a new application, to which we applied the same decision as for all applications of that kind.

We thus see that the expropriation may have been the occasion, but not the cause, of the loss of the personal privilege enjoyed, as an exception, by respondent on Plateau Street, northwest corner of Jeanne Mance. The real cause of the non-continuance of this privilege, as far as the property on Concord Street, is concerned, was the application of the policy adopted and followed by the elected municipal administration.

For these reasons, I would allow this appeal, reverse the judgments of the Court of Appeal and the Superior Court, and dismiss respondent’s action, the whole with costs.

The judgment of Abbott, Ritchie, Hall and Pigeon JJ. was delivered by

PIGEON J.—Respondent was incorporated in 1952 to acquire and hold a building in Montreal for the purposes of an unincorporated trade union, the International Ladies Garment Workers Union. A lot was purchased on Plateau Street in the City of Montreal, at the north-west corner of Jeanne-Mance Street. Construction began in 1953 and was completed in 1954. One of the three floors was intended for use entirely as a medical centre for union members, the rest for offices and other rooms. Early in 1954, the following provision was enacted by the Legislature as s. 20 of c. 66, entitled “An Act to amend the Charter of the City of Montreal”:

20. The city is authorized to enact by resolution of its council upon report of the executive committee, that the actual and future lands and buildings of the ILGWU Center Inc., on Plateau Street, north-west corner of Jeannne Mance, shall be exempt from the ordinary and annual real estate tax inasmuch as same

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are used, in whole, for administrative, medical, educational or cultural purposes, for the International Ladies Garment Workers Union.

On May 6, 1954, the City Council passed a resolution adopting the following report of the Executive Committee, dated April 1st:

[TRANSLATION] THE EXECUTIVE COMMITTEE

has the honour to recommend that from May 1, 1954, the actual and future lands and buildings of the ILGWU Centre Inc., be exempt from the ordinary and annual real estate tax inasmuch as same shall be used for administrative, medical, educational or cultural purposes, for the International Ladies Garment Workers Union.

The building on Plateau Street was completed and used for the purposes contemplated, and respondent accordingly benefited from the tax exemption granted it.

In 1961 expropriation of respondent’s property on Plateau Street was found to be necessary for the construction of Place des Arts, which had been undertaken by the Sir Georges-Étienne Cartier Center, a corporation created under 4-5 Eliz. II, c. 24 and authorized thereunder to exercise powers of expropriation in accordance with the provisions of the Charter of the City of Montreal. Accordingly, on August 9, 1961, a judgment was rendered by the Superior Court, ordering the Public Service Board to proceed to determine compensation. The proceedings were delayed by an opposition that was eventually withdrawn by respondent. On February 2, 1966, the Board’s report set compensation in the amount of $734,832.16. The last paragraph of this report reads as follows:

[TRANSLATION] Regarding the damage which the owner alleges resulted from the loss of an exemption from municipal taxes, the Board does not have jurisdiction to decide on this matter, but reserves to the owner all remedies he may have before the appropriate Court.

This report was homologated by a judgment of the Superior Court rendered in default of appearance on February 25, 1966.

It should be noted that, after expropriation proceedings were started, respondent did not

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fail to show concern for the consequences which might result from the fact that it was compelled to relocate at another site. Having acquired a lot and begun construction of a building at 405 Concord Street, it made numerous representations to the municipal authorities.

On September 19, 1962, counsel for the respondent informed the Mayor that the Controller of Exemptions contended that only the property on Plateau Street could benefit from the exemption granted in 1954. On October 3, he wrote a letter to the Director of Departments of the City, contending that the exemption followed the organization to its new site; in closing, however, he stated:

If, perchance, another view is taken of the foregoing, I am instructed respectfully to request that the City, in presenting its next amendments to the Legislature at Quebec, include among such amendments the following:

“That an Act to amend the Charter of the City of Montreal, being 2-3 Elizabeth II, ch. 66, Sec. 20, entitled “Exemption of Taxes Authorized” be amended by deleting therefrom the words “on Plateau street, north-west corner of Jeanne Mance”, in the said Section 20.”

The Director of Departments of the City replied on February 8, 1963, as follows:

The Executive Committee has been seized of your communication of October 3, 1962 and has asked me to inform you that it would have no objection to a request, to be made by the ILGWU Center to the Provincial Legislature, to insert the amendment suggested and quoted on the last page of your letter.

On April 24, 1963, the Legislature enacted the following provision as s. 60 of 11-12 Eliz. II, c. 70, entitled “An Act to amend the Charter of the City of Montreal”:

60. Section 20 of the act 2-3 Elizabeth II, chapter 66 is replaced by the following:

“20. The city is authorized to enact, by. resolution of its council upon report of the executive committee, that the actual and future lands and buildings of the ILGWU Center Inc., on Concord Street, shall be exempt from the ordinary and annual real estate tax so long as they are used entirely for administrative, medical, educational or

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cultural purposes, for the International Ladies Garment Workers Union.”

On June 27, 1963, replying to a letter from counsel for the respondent again claiming the exemption, the Director of Departments of the City informed him that he would submit the request to the municipal authorities as soon as the new building would be completed. Ultimately, however, on April 27, 1964, he informed him that the Executive Committee did not intend to recommend that the Council grant an exemption from taxes for the property on Concord Street. It is under those circumstances that respondent requested from the Board special compensation for Toss of the exemption. There is in the record a letter dated January 25, 1965, in which counsel for the City undertakes that a City official will have the file available at the hearing before the Public Service Board.

The present proceedings were instituted by declaratory action on July 22, 1966. In this action the City of Montreal is summoned as defendant, and the Public Service Board and the Régie de la Place des Arts as “mises-en-cause”. It is to be noted that, under the Place des Arts Act (12-13, Eliz. II, c.19), the latter succeeded to the Sir Georges-Étienne Cartier Center. The conclusions of the action are primarily, that the exemption from taxes granted to respondent in 1954 be declared applicable to the property on Concord Street; subsidiarily it prays that the expropriation record be returned to the Public Service Board so that the latter may assess compensation for the loss of the exemption, or alternatively, that an amount of $175,000 be awarded for such loss.

The Superior Court granted the primary conclusion and this judgment was affirmed by the Court of Appeal. The reasons for the judgment in first instance were essentially that the resolution of 1954 granting respondent an exemption from taxes was valid to the full extent of the power conferred on the City:

[TRANSLATION] In short, the Court is of opinion that when the Legislature, acquiescing in the request of

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plaintiff and defendant, amended the Statutes of Quebec, 2-3 Elizabeth II, chapter 66, section 20, by 11-12 Elizabeth II, chapter 70, section 60, it did not intend to cancel the resolution passed on May 6, 1954. On the contrary, it appears that the purpose of this new statute was to ratify the resolution and to remove any doubt as to its validity.

On appeal the Court said:

[TRANSLATION] The power granted by the Legislature to the defendant never ceased to exist. It was conferred on February 18, 1954 (2-3 Eliz. II, c. 66), and confirmed and upheld by the new section 20 on April 24, 1963 (11-12 Eliz. II, c. 70, s. 60 and R.S.Q. c. 1, s. 8). Defendant’s resolution, adopted on May 6, 1954, has always been, and is still, in effect.

It appears convenient to consider at first the situation prior to the adoption of the 1963 statute. Could the respondent have claimed to be exempt from taxes for the property on Concord Street under the statute and resolution of 1954? I think not. As a rule a municipal corporation cannot grant tax exemptions: it may only exercise its taxation power over all property subject to tax without distinction, except where a statute exceptionally permits it to act otherwise. In this case the 1954 statute authorized such action only for “the actual and future lands and buildings of the ILGWU Center Inc., on Plateau Street, north-west corner of Jeanne-Mance”. It is true that this description involves some uncertainty on account of the words “actual and future”, but it is not necessary to consider how far this might have been taken, since clearly it could not be taken very far without exceeding the terms of the authorization.

It must further be noted that the repetition of the article “les” before “bâtiments” (buildings) makes the adjectives “actuels et futurs” (actual and future) referable to this word only, not to the word “terrains” (lands). This distinction is readily understandable, since the construction was not completed when the statute was passed. It is true that in the English version the words “actual and future” are placed before “lands and buildings”, and so unquestionably refer to both words; but as this is a special act derogat-

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ing from the principle of uniform taxation, I am inclined to believe that the version with the more restrictive meaning must be followed. However, it does not seem necessary to reach a firm conclusion on this point, because in both versions the wording clearly limits the allowable exemption to lands and buildings “on Plateau Street, north-west corner of Jeanne-Mance”.

Respondent’s contention that this is merely an address, not a description of the property concerned, is quite simply contrary to the text. The Legislature could certainly have conferred the power to grant respondent an exemption for its actual and future properties in any part of the city, but it has not done so.

What is now to be said about the fact that the 1954 resolution contains no limitation? This obviously could not extend the scope of the legislative provision; consequently the resolution could only be valid if it impliedly contained the limitation laid down by the statute. As the Legislature did not authorize the exemption of all properties in the city owned for the designated purposes by the respondent, but only of those on Plateau Street, at the north-west corner of Jeanne-Mance, the municipal council certainly could not grant an exemption which the Act did not authorize.

Moreover, in the resolution as in the statute, it appears clear that the words “actuels et futurs” (actual and future) qualify only the word “bâtiments” (buildings); hence if the resolution is strictly interpreted, as it should be, it would have to be said that the exemption was only for the land which respondent had at that time, and the actual and future buildings thereon.

It must therefore be held that, after the expropriation took place in 1961, the 1954 resolution lapsed. Respondent no longer owned the buildings for which an exemption had been granted by appellant, and its new buildings were not located at the only place where an exemption was authorized. This much both parties fully appreciated.

We now come to the 1963 statute. Can s. 60 be regarded as granting an exemption to

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respondent? This seems impossible to me because it is contrary to the basic nature of the provision. It authorizes the municipal council to grant an exemption; it is not a ratification or validation such as in other sections, e.g. 54, 55 and 56. It is undoubtedly true that the City Council ha never repealed the 1954 resolution, which apparently remains in force, but this cannot be looked upon as a decision to implement the authorization to grant an exemption for the Concord Street property. In fact, it clearly is a decision to implement the 1954 authorization.

Respondent however relies on the fact that the 1963 statute enacts that the 1954 section “is replaced” by the new one. From this it would have us infer that the new section must be given the same effect as if it had been originally enacted in this form. This is an ingenious argument but it is not supported by the enactment which replaces the former section now, and is definitely not retroactive.

Of all the cases to which we have been referred on the meaning of the word “replaced”, the only one which appears to be of interest is: Re Green, Re Jamael[2]. The Nova Scotia Legislature had replaced a provision directed against whoever unlawfully kept, had, gave or consumed liquor, by two separate provisions: the first directed against the fact of keeping or having, the second that of giving or consuming. The change was made by enacting that the prior statute was repealed and the new provision substituted therefor. The Court of Appeal refused to accept that there had really been a repeal of the prior statute, and it held accordingly that a person convicted of having had liquor in his possession in breach of the earlier provision could be found guilty of a second offence when convicted for so doing under the new wording. In coming to this conclusion they particularly relied on a decision given in the Province of Ontario in Licence Commissioners v. The

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County of Frontenac[3], where it was held that a provincial statute dealing with expenses incurred for the enforcement of a federal statute did not cease to be effective because the latter was repealed and replaced by the Revised Statutes of Canada.

It is clear in the present case that the amendment made by the 1963 Act is not in the nature of a consolidation. by a substantially identical provision, but by one incorporating an important difference. We are therefore dealing with a change of substance, not a reproduction in identical, or substantially identical, terms. It appears from the judgment of the Nova Scotia Court of Appeal that the basis of the decision was precisely that the new wording was substantially identical with the former. This was all the more so in the case of the replacement of an earlier statute by the “Revised Statutes”. Here, the situation is quite different. There is a significant change: the Legislature has really conferred a new authorization. The authority on which the power to grant a new exemption has thus been conferred has chosen not to exercise it and nothing required it to do so. We were referred to various sections of the Interpretation Act; none of them is relevant to such a case.

For the above reasons, therefore, it must be found hat respondent’s primary conclusion cannot be maintained. The subsidiary conclusions therefore remain to be considered.

The exemption from taxes enjoyed by respondent for an indefinite period lapsed as a result of the expropriation of the property for which it was granted. According to the evidence the municipal administration of Montreal has never withdrawn an exemption so granted; thus it was an important advantage of which respondent was definitively deprived as a

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consequence of the expropriation. No reason was advance at the hearing why this very real loss should not form the basis of some compensation.

According to s. 996 of the Charter of the City of Montreal, “the expropriation indemnity shall include the actual value of the immoveable, part of an immoveable or servitude expropriated and the damages resulting from the expropriation; …” Moreover, this right to damages in addition to the actual value is the general rule in cases of expropriation: Art. 780 (formerly 1066 l) of the Code of Civil Procedure). In Irving Oil Company Limited v. The King[4], this Court considered the extent of the provision in the federal Expropriation Act, which likewise admits the expropriated party’s right to damages. It was held that this includes the right of the expropriated party to recover all losses and expenses arising out of the expropriation, in addition to the value of the land. The breakdown of the sum allowed is given in the reasons of Rand J., and it includes moving expenses, damages through disturbance of business, and, finally, taxes prepaid for the unexpired portion of the year. At p. 560 one reads:

The use of the word “damages” and the further language “and all other things done in pursuance of this Act”, indicate the comprehensive sense in which the word is used and that it is intended to cover not merely the value of land itself, but the whole of the economic injury done which is related to the land taken as consequence to cause.

Kerwin J. stated the principle to be applied as follows (at p. 556):

It was argued in the Exchequer Court of Canada, before the late President MacLean, in Federal District Commission v. Dagenais (1935, Ex. C.R. 25), that no compensation could be allowed for certain items there claimed because they did not represent an estate or interest in the lands taken. While saying nothing as to the correctness of the list of things for which compensation has been allowed and enumerated by the late President, I agree with him that the principle in this class of case is that the displaced

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owner should be left as nearly as possible in the same position financially as he was prior to the taking, provided that the damage, loss or expense for which compensation was claimed was directly attributable to the taking of the lands.

This statement is strikingly similar to the rule laid down by Picard in his Traité Général de l’Expropriation (Vol. I, p. 111):

[TRANSLATION] So far as possible, the expropriated party must be enabled to obtain from the compensation rights and advantages identical with those of which he is deprived by expropriation.

If an expropriated party is to be regarded as deprived of the benefit of municipal taxes prepaid for the remainder of the year in which expropriation takes place, why should it be otherwise for the benefit of the tax exemption granted for an indefinite time with respect to the expropriated immoveable?

Compensation for expropriation is not limited to the intrinsic value of the immoveable taken. If the property has a special value to the expropriated party, over and above the market price, he is entitled to this special value together with the damages he suffers. For this reason the rule to be used as a guide in assessing compensation was formulated as follows by Rand J. in Diggon-Hibben Limited v. The King[5]:

… the owner at the moment of expropriation is to be deemed as without title, but all else remaining the same, and the question is what would he, as a prudent man, at that moment, pay for the property rather than be ejected from it.

It seems obvious that if respondent had been called upon to compute the price it would have been prepared to pay rather than give up its property, it would never have failed to include the value of the tax exemption which it would lose by leaving it. If the power of expropriation for the construction of Place des Arts had not existed, respondent would certainly never have agreed to transfer its immoveable without com-

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pensation for the loss of the exemption. As Rand J. says in the judgment just cited (p. 715):

A compensation statute should not be approached with the attitude that Parliament intended an individual to be victimized in loss because of the accident that his land rather than his neighbour’s should be required for public purposes;

No reason was shown for not regarding the loss in question as “resulting” from the expropriation. On the evidence, this is the only fact to which it can be attributed: no other possible cause was suggested. It certainly cannot be ascribed to the decision not to grant for the new property the exemption authorized by the 1963 statute: this would be to look to a subsequent fact for the cause of a loss which was suffered at the time of the expropriation in 1961. At that time the City’s charter made this loss definitive; it did not authorize the granting of an exemption for a property other than the expropriated land. The damage might have been reduced or avoided for the future if the City had used the power to grant a new exemption. Its decision not to do so did not cause the loss, it left it unabated. The causal relationship has accordingly, in my view, been established.

It is perhaps worth noting that there are, in the reported decisions of United States courts, two judgments which have recognized the right of an expropriated party to be compensated for the loss of a municipal tax exemption: Old South Association in Boston v. City of Boston[6], United States v. 205.03 Acres of Land[7].

Upon mailing to the Registrar, in order to complete the record as requested by the Court, a copy of the judgment homologating the report of the Public Service Board, appellant raised the contention that all other remedies were foreclosed. In my opinion the meaning of the report of the Public Service Board, like that of the 1963 statute, is to be gathered from the text as a whole, rather than from any particular expression. Clearly the Board in no way intended to adjudicate on the right to an exemption from

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taxes, or on the compensation that might be due if such exemption was lost.

We are thus dealing with a case where the Board has not assessed compensation for a portion of the damage occasioned by expropriation. To admit appellant’s objection would be to put respondent in the same position as if the Board had ruled against its right to such compensation, when it has not done so. In my opinion the Board is to be treated as having failed to exercise its jurisdiction to determine the compensation due to respondent for the loss of the exemption. In these circumstances, the homologation of its decision does not have the effect of depriving respondent of the right to demand, by appropriate proceedings, that the Board be ordered to exercise its jurisdiction where it has failed to do so.

All parties were made “mises-en-cause”, the Public Service Board as well as the expropriating authority, the Régie de la Place des Arts. I am therefore of the opinion that the subsidiary conclusion, that the case be referred to the Public Service Board for the assessment of the compensation for the loss of the tax exemption, should be granted.

For these reasons, I would allow the appeal, set aside the decision of the Court of Appeal and amend the judgment of the Superior Court by replacing the operative part by the following:

ORDERS that the record on expropriation of the properties of the ILGWU Center Inc., on Plateau Street, north-west corner of Jeanne-Mance, be referred to the Public Service Board so that the latter may assess the compensation payable for the loss of the tax exemption granted by the resolution of May 6, 1954.

Since appellant has met with limited success only, it seems appropriate not to award costs.

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Appeal allowed and judgment of the Superior Court amended to grant the alternative claim without cost, Fauteux C.J. dissenting in part.

Solicitors for the defendant, appellant: Côté, Peloquin, Mercier, Normandin, Ducharme & Bouchard, Montreal.

Solicitors for the plaintiff, respondent: Spector & Schecter, Montreal.

Solicitors for the mises-en-cause: Lacroix, Viau, Bélanger, Pagé, Hébert & Mailloux, Montreal.