The Queen v. Crawford, [1960] SCR 527

Supreme Court of Canada

The Queen v. Crawford, [1960] S.C.R. 527

Date: 1960-04-11

Her Majesty The Queen Appellant;

and

Florence Crawford Respondent.

1960: March 11, 14; 1960: April 11.

Present: Kerwin C.J. and Taschereau, Locke, Cartwright, Fauteux, Martland and Ritchie JJ.

ON APPEAL FROM THE EXCHEQUER COURT OF CANADA.

Expropriation—Validity—Whether land taken required to be laid out by metes and bounds on the ground—Deposit of plan and description— Whether necessary to show each owner's land separately—The Expropriation Act, R.S.C. 1927, c. 64, s. 9(1) (R.S.C. 1952, c. 106, s. 9(1)).

The Crown in right of Canada expropriated the lands of several persons, including the respondent, by depositing in the Registry Office a plan and description covering these lands. The respondent contended that the expropriation was invalid, inter alia, because these lands were not laid off by metes and bounds as required by s. 9(1) of the Expropriation Act, R.S.C. 1927, c. 64. The trial judge declared the expropriation invalid on that ground. The Crown appealed to this Court.

Held: The appeal should be allowed.

Per Kerwin C.J.: Under the Expropriation Act, there are two distinct methods of taking land required by the Crown: (a) by the fact of the taking physical possession thereof and (b) by the filing of the plan and description. When the second method is used, as in the present case, the deposit of the plan and description, signed as provided by the Act, is sufficient.

Per Taschereau, Locke, Cartwright, Fauteux, Martland and Ritchie JJ.: What s. 9 of the Act requires is that the lands proposed to be taken shall be laid down or marked out on a map or plan and shall also be described by metes and bounds in a written verbal description, which plan and description shall then be deposited in the office of the registrar of deed. It is immaterial whether any work is done by a surveyor or whether any visible marks are placed at the boundaries. All that is required is that the plan and description make clear what land is being expropriated, and, in this case, that requirement was fulfilled.

Per Curiam: The other grounds on which the respondent sought to have the expropriation declared invalid, were rightly rejected by the trial judge.

APPEAL from a judgment of Thorson P. of the Exchequer Court of Canada1, declaring an expropriation of land invalid. Appeal allowed.

D. S. Maxwell and P. M. Troop, for the appellant.

K. E. Eaton and W. T. Green, for the respondent.

[Page 528]

The Chief Justice:—This is an appeal on behalf of Her Majesty the Queen against a judgment of the President of the Exchequer Court2 delivered after the trial of a petition of right and declaring "that the alleged expropriation of the Suppliant's land on November 3, 1947 was invalid and that the deposit of the plan and description on the third day of November 1947 did not have the effect of vesting the land or lands of the Suppliant in His late Majesty the King in right of Canada."

The suppliant is the widow, executrix and sole devisee of Lawrence A. Crawford, who died January 16, 1958, and who, in November 1947, was the owner of part of lot 2, concession 4, Rideau Front, of the Township of Gloucester, in the County of Carleton, in the Province of Ontario, and was registered as such in the office of the Registrar of Deeds for the said county. On November 3, 1947, there was registered in the said Registry Office a notice of expropriation reading as follows:

NOTICE OF EXPROPRIATION

Land to be Acquired for Government Control Purposes in the Township of Gloucester, County of Carleton, Province of Ontario.

TAKE NOTICE that the parcels of land and property described in the description hereto annexed and shown coloured red on the plan hereto attached, being situate in the Township of Gloucester, County of Carleton and Province of Ontario, have been taken possession of for the use of His Majesty the King, in right of Canada, the said land and premises being required for Government purposes, and that the said lands and property are vested in His Majesty the King, His Heirs and Successors, by virtue of the "Expropriation Act", R.S.C. 1927, Chapter 64.

"J. M. Somerville",
Secretary of the Department of
Public Works of Canada.

The description annexed included a great number of parcels of land, but the land of Lawrence A. Crawford (part of lot 2, concession 4, Rideau Front, of the Township of Gloucester) was included in the following:

ALL and Singular those certain parcels or tracts of land and premises, situate, lying and being in the Township of Gloucester, County of Carleton and Province of Ontario, and being composed of......................

The whole of Lots 2, 3, 4, and 5 of Concession IV (Rideau Front), and Parts of Lots 2, 3, 4, 5 and 6 of Concession III (Rideau Front),

[Page 529]

All in the above-mentioned Township of Gloucester. After setting out all the parcels of land these words appear: All of which may be more particularly described as follows:—

(Then follows a detailed description at the end of which is)

ALL AS SHOWN coloured red on the accompanying plan dated July 8th, 1947.

.......................................................................................................................

The above is a plan and description of certain lands and premises shown coloured red or delineated in red, taken for the use of His Majesty the King, in right of Canada, under the provisions of the Expropriation Act, Chapter 64 of the Revised Statutes of Canada, 1927. Ottawa, August 8th, 1947.

S. E. Farley, O.L.S.

The first complaint of the suppliant is dealt with satisfactorily by the President who stated that the Registrar of Deeds for the County of Carleton testified "that he received the plan and description, and also a notice of expropriation, as one document and recorded it as such", although by the lapse of time the plan and description had become separated and were filed as separate exhibits. Another attack made on the validity of the expropriation was that a plan and description of each individual's land by itself must be registered or in any event that the land of each such person must be shown separately on the plan and appear separately in the description. I agree with the President's judgment that this cannot be substantiated. While the land of Lawrence A. Crawford was not shown separately, there is no doubt from all the evidence that it was included in the land covered by the plan and description.

It was alleged that the plan and description were not signed as required by the Expropriation Act. Here also I agree with the President that it is shown by the evidence that the plan is a print of the plan drawn by Mr. S. E. Farley and that the latter was an Ontario land surveyor duly licensed and sworn in and for the Province of Ontario. Mr. Farley's signature appeared upon the original plan and his signature was reproduced on the print. The evidence of Mr. Arthur Cordes who, in 1947, was the principal clerk in the Secretary's Branch of the Department of Public

[Page 530]

Works, shows that he typed the certificate that appears on the back of the plan and that he saw Mr. Somerville sign it after it was pasted on the back.

By an amendment permitted at the trial, para. 9 was added to the petition of right:

9. The purported expropriation referred to in paragraph 2 of this petition was invalid in law by reason of the fact that the land described in the plan and description referred to in the said paragraph was not laid off by metes and bounds, at the instance of an authority acting for the respondent, as required by section 9 of the Expropriation Act.

It was upon this ground that the President gave the judgment now before us. He came to that conclusion because he considered that two judgments of this Court, Kearney v. Oakes (decided November 10, 1890)3 and Kearney v. The Queen, decided April 30, 1889, but not reported, were in conflict. The latter judgment was given on an appeal from the judgment of Burbidge J. in the Exchequer Court (decided September 24, 1888)4, at the end of which report appears this note:

On appeal to the Supreme Court of Canada by the claimant, the amount of compensation awarded by the Exchequer Court was increased on the ground that it did not appear that such compensation was assessed in view of the future damage that may result from the want of a crossing.

The reasons for judgment in this Court cannot be located but the entry in the Registrar's Book, on April 30, 1889, with reference to this appeal reads:

Appeal allowed with costs and compensation awarded by Exchequer Court increased to $4,000, Gwynne J. dissenting,

although in Kearney v. Oakes, Gwynne J. says that the damages were fixed in this Court at $5,131.60.

While Kearney v. The Queen was decided before Kearney v. Oakes, the trespass giving rise to the litigation which culminated in the last named decision occurred in September 1884. The action was brought in Nova Scotia and the reasons of the trial judge, Chief Justice MacDonald, delivered in May 1886 are to be found in volume 57 of the bound Cases Filed in the Supreme Court of Canada. The claim was for damages for trespass against Government contractors concerned in the construction of a branch line of the Inter-colonial Railway more than one mile in length. On

[Page 531]

August 13, 1884, there had been filed in the Office of the Registry of Deeds at Halifax a plan and description in presumed compliance with subs. (1) of s. 10 of the Government Railways Act, 1881 (Can.), c. 25. This subsection in all relevant respects is the same as s. 9(1) of the Expropriation Act of Canada with which we are concerned. The plan and description indicated the centre line of the proposed railway and designated the land to be expropriated "as embracing a width" of a certain number of feet on each side of the line. By s. 6 of the Government Railways Act the Minister of Railways and Canals might for certain purposes, but by and with the authority of the Governor-in-Council, build, make and construct a branch line of railway not to exceed in any one case six miles in length. There was a proviso that where the branch, or siding, did not exceed one mile in length, the Minister might construct such branch, or siding, without an Order-in-Council. The Order-in-Council put in evidence as authority to the Minister to construct the branch, purported to have been made on December 12, 1884, which, of course, was after the filing of the plan and description in the Registry of Deeds and as already stated the branch line was more than one mile in length. Chief Justice MacDonald said in part:

If this Order-in-Council be sufficient to justify and legalise an entry upon the plaintiff's land by the Minister of Railways and his servants at any period antecedent to this date, then I find that in all other respects the proceedings to expropriate the plaintiff's land have been in accordance with the statute and sufficient to invest title in Her Majesty and the justification of the defendants is sustained.

However, his conclusion was:

Here the entry was originally wrongful without lawful authority and a trespass by every person who invaded the plaintiff's possessions against her will, and I cannot hold that the subsequent confirmation by the Order-in-Council made that legal which before was illegal and unwarranted.

The Supreme Court of Nova Scotia en banc5 allowed an appeal on the ground that the contractors were employees of the Government department and that under s. 109 of the Government Railways Act they were entitled to one month's notice in writing before bringing the action, which notice had not been given. This Court allowed Mrs. Kearney's

[Page 532]

appeal. Chief Justice Ritchie dissenting, agreed with the Nova Scotia Court en banc. Gwynne J. dissenting, held that the passing of the Order-in-Council was not necessary because the requisite authority was to be found in the Public Works Act. He also held that the contractors were employees of the Government. A careful examination of the reasons of Patterson J. shows that he agreed with Chief Justice MacDonald, that "the fundamental difficulty in his way (that is, in the way of counsel for the defendants) is the absence of legal authority to enter on the lands of the plaintiff in September 1884"; (18 S.C.R. p. 177). Subsequently, at p. 180, he said:

It is argued that the effect of the deposit of the plan was under section 10 to vest the lands in the Crown making the entry lawful and confirming the right of the plaintiff to her claim for compensation. I am inclined to think that that would be so if the section had been fully complied with but I have not examined the statute closely enough to speak more decidedly on the point. It seems clear, however, that the plan and description must be of territory laid off by metes and bounds. It is upon "such lands" that the statutory conveyance operates and the essential work on the ground is here wanting.

It is quite clear that Mr. Justice Patterson did not examine the statute closely on this point because, if he had, he would have found subs. (3) of s. 10 of the Government Railways Act reading as follows:

(3) Such plan and description may be deposited at any time either before entry upon the lands, or within twelve months thereafter.

However, whether his views that "the plan and description must be of territory laid off by metes and bounds" and "the essential work on the ground is here wanting" be obiter or not there is no doubt that the only member of the Court who agreed with him was Mr. Justice Fournier. It has already been explained that Chief Justice Ritchie and Mr. Justice Gwynne would have dismissed the appeal. The fifth member of the Court, Taschereau J., stated merely: "I am also of opinion that the appeal should be allowed". This cannot be taken as a concurrence in the reasons of Patterson J. This is, therefore, not a decision that "lands taken for the use of Government railways shall be laid off by metes and bounds" means that the lands to be taken have to be marked on the ground.

[Page 533]

There is no inconsistency between the decision which has just been considered and that of this Court in Kearney v. The Queen, because in that case the Minister of Railways and Canals had referred the claim of the owner for compensation to the Exchequer Court and by arrangement between the Crown and the claimant this was without prejudice to the appeal to this Court in Kearney v. Oakes. By that time, of course, as mentioned above, the Order-in-Council of December 12, 1884, had been passed. As Burbidge J. stated6:

The only question arising on the reference is as to the amount of compensation that should be awarded to the claimant for the land taken from her for the Dartmouth Branch Railway, and for damages in respect of her property being injuriously affected by the construction of such railway.

We are, therefore, untrammelled by any previous decision of this Court as to the meaning to be ascribed to subs. (1) of s. 9 of the Expropriation Act, R.S.C. 1927, c. 64.

Section 9 must not be considered in isolation but must be read in connection with other sections. Section 3 enacts in part:

3. The Minister (which is defined as meaning the head of the department charged with the construction and maintenance of the public work) may by himself, his engineers, superintendents, agents, workmen and servants,

(a) enter into and upon any land to whomsoever belonging, and survey and take levels of the same, and make such borings, or sink such trial pits as he deems necessary for any purpose relative to the public work;

(b) enter upon and take possession of any land, real property, streams, waters and watercourses, the appropriation of which is, in his judgment, necessary for the use, construction, maintenance or repair of the public work, or for obtaining better access thereto;

Section 7 provides:

7. The minister may employ any person duly licensed or empowered to act as a surveyor for any province of Canada or any engineer, to make any survey, or establish any boundary and furnish the plans and descriptions of any property acquired or to be acquired by His Majesty for the public work.

2. The boundaries of such properties may be permanently established by means of proper stone or iron monuments planted by the engineer or surveyor so employed by the minister.

3. Such surveys, boundaries, plans and descriptions shall have the same effect to all intents and purposes as if the operations pertaining thereto or connected therewith had been performed and such boundaries had been

[Page 534]

established and such monuments planted by a land surveyor duly licensed and sworn in and for the province in which the property is situate.

4. Such boundaries shall be held to be the true and unalterable boundaries of such property, if, ….(certain conditions are complied with).

5. It shall not be incumbent on the minister or those acting for him to have boundaries established with the formalities in this section mentioned, but the same may be restored to whenever the minister deems necessary.

Section 9 reads:

9. Land taken for the use of His Majesty shall be laid off by metes and bounds; and when no proper deed or conveyance thereof to His Majesty is made and executed by the person having the power to make such deed or conveyance, or when a person interested in such land is incapable of making such deed or conveyance, or when, for any other reason, the minister deems it advisable so to do, a plan and description of such land signed by the minister, the deputy of the minister or the secretary of the department, or by the superintendent of the public work, or by an engineer of the department, or by a land surveyor duly licensed and sworn in and for the province in which the land is situate, shall be deposited of record in the office of the registrar of deeds for the county or registration division in which the land is situate, and such land, by such deposit, shall thereupon become and remain vested in His Majesty.

2. When any land taken is required for a limited time only, or only a limited estate or interest therein is required, the plan and description so deposited may indicate, by appropriate words written or printed thereon, that the land is taken for such limited time only, or that only such limited estate or interest therein is taken, and by the deposit in such case, the right of possession for such limited time, or such limited estate or interest, shall become and be vested in His Majesty.

3. All the provisions of this Act shall, so far as they are applicable, apply to the acquisition for public works of such right of possession and such limited estate or interest.

(Subsections (2) and (3) were enacted for the first time in 1903 by 3 Edward VII, c. 22, s. 1.)

Sections 11, 12, 22(1) and 23 are as follows:

11. A plan and description of any land at any time in the occupation or possession of His Majesty, and used for the purposes of any public work, may be deposited at any time in like manner and with like effect as herein provided, saving always the lawful claims to compensation of any person interested therein.

12. In all cases, when any such plan and description, purporting to be signed by the deputy of the minister, or by the secretary of the department, or by the superintendent of the public work, or by an engineer of the department, or by a land surveyor duly licensed as aforesaid, is deposited of record as aforesaid, the same shall be deemed and taken to have been deposited by the direction and authority of the minister, and as indicating that in his judgment the land therein described is

[Page 535]

necessary for the purposes of the public work; and the said plan and description shall not be called in question except by the minister, or by some person acting for him or for the Crown.

* * *

22. If any resistance or opposition is made by any person to the minister, or any person acting for him, entering upon and taking possession of any lands, a judge of the Court, or any judge of any superior court may, on proof of the execution of a conveyance of such lands to His Majesty, or agreement therefor, or of the depositing in the office of the registrar of deeds of a plan and description thereof as aforesaid, and after notice to show cause given in such manner as he prescribes, issue his warrant to the sheriff of the district or county within which such lands are situate directing him to put down such resistance or opposition, and to put the minister, or some person acting for him, in possession thereof.

* * *

23. The compensation money agreed upon or adjudged for any land or property acquired or taken for or injuriously affected by the construction of any public work shall stand in the stead of such land or property; and any claim to or encumbrance upon such land or property shall, as respects His Majesty, be converted into a claim to such compensation money or to a proportionate amount thereof, and shall be void as respects any land or property so acquired or taken, which shall, by the fact of the taking possession thereof, or the filing of the plan and description, as the case may be, become and be absolutely vested in His Majesty.

I agree with the submission of counsel for the appellant that there are two distinct methods of taking land required for Her Majesty, namely, (a) by the fact of the taking physical possession thereof (s. 3) and (b) by the filing of the plan and description (s. 9). If the taking is under the latter, the deposit of the plan and description, signed as provided, is sufficient. If this were not so, the expropriation of the land for Camp Gagetown in New Brunswick would not have been feasible: Gagetown Lumber Company v. The Queen7, as is shown by the evidence in this case of Ross W. Arnett, an Ontario land surveyor and civil engineer. The following words in s. 23, and particularly those italicized, appear to me to be conclusive of the matter:

Any claim to or encumbrance upon such land or property shall, as respects His Majesty, be converted into a claim to such compensation money or to a proportionate amount thereof, and shall be void as respects any land or property so acquired or taken, which shall, by the fact of the taking possession thereof, or the filing of the plan and description, as the case may be, become and be absolutely vested in His Majesty.

[Page 536]

A reading of the French version of all the sections noted above leads to the same conclusion.

The appeal should be allowed, the judgment below set aside and the petition of right dismissed with costs. Under the circumstances there should be no costs of the appeal.

The judgment of Taschereau, Locke, Cartwright, Fauteux, Martland and Ritchie JJ. was delivered by

Cartwright J.:—The questions raised on this appeal and the relevant statutory provisions are set out in the reasons of the Chief Justice.

I agree with the conclusion of the Chief Justice that the learned President8 was right in rejecting all of the grounds, other than those set out in para. 9 of the petition, on which the respondent sought to have the expropriation of the lands owned by her declared invalid.

The sole ground on which the learned President proceeded in declaring the expropriation invalid was set out in para. 9, which was added to the petition by amendment made at the trial, and reads as follows:

9. The purported expropriation referred to in paragraph 2 of this petition was invalid in law by reason of the fact that the land described in the plan and description referred to in the said paragraph was not laid off by metes and bounds, at the instance of an authority acting for the respondent, as required by section 9 of the Expropriation Act.

The learned President makes it clear that, in his opinion, this ground also ought to be rejected, but in view of certain observations made in the reasons of Patterson J. in Kearney v. Oakes9, he deemed it advisable to make the declaration of invalidity sought by the petitioner so that the question of law raised as to the true construction of s. 9(1) of the Expropriation Act might be passed on by this Court.

Section 9(1) of the Expropriation Act, R.S.B.C. 1952, c. 106, is in the same words as s. 9(1) of the Expropriation Act, R.S.C. 1927, c. 64, which was the Statute in force at the date of the expropriation here in question, it reads as follows:

9(1) Land taken for the use of Her Majesty shall be laid off by metes and bounds; and when no proper deed or conveyance thereof to Her Majesty is made and executed by the person having the power to make such deed or conveyance, or when a person interested in such land

[Page 537]

is incapable of making such deed or conveyance, or when, for any other reason, the Minister deems it advisable so to do, a plan and description of such land signed by the Minister, the deputy of the Minister or the secretary of the department, or by the superintendent of the public work, or by an engineer of the department, or by a land surveyor duly licensed and sworn in and for the province in which the land is situate, shall be deposited of record in the office of the registrar of deeds for the county or registration division in which the land is situate, and such land, by such deposit, shall thereupon become and remain vested in Her Majesty.

In Kearney v. Oakes, supra, consideration was given to the meaning of s. 10 of the Government Railways Act, 1881 (Can.), c. 25. The opening words of this section were:

Lands taken for the use of Government railways shall be laid off by metes and bounds;

The remainder of the section was in substantially the same words as s. 9(1) of the Expropriation Act, quoted above.

The passage in the reasons of Patterson J. on which the judgment of the learned President is founded appears at page 180 of the report and is as follows:

It is argued that the effect of the deposit of the plan was, under section 10, to vest the lands in the crown, making the entry lawful and confirming the right of the plaintiff to her claim for compensation. I am inclined to think that that would be so if the section had been fully complied with, but I have not examined the statute closely enough to speak more decidedly on the point. It seems clear, however, that the plan and description must be of territory laid off by metes and bounds. It is upon "such lands" that the statutory conveyance operates, and the essential work on the ground is here wanting.

I do not find it necessary to form a final opinion as to whether this pronouncement should be regarded as obiter, for I am in agreement with the Chief Justice that it did not form part of the judgment of the majority of the Court and is not binding upon us.

It is apparent from the paragraph quoted from the reasons of Patterson J. and from the three paragraphs immediately preceding that quotation that he construed the words "shall be laid off by metes and bounds" as meaning "shall have the boundaries thereof marked physically on the ground by stakes or other visible indicia".

[Page 538]

In my opinion this construction was incorrect and involved reading into the section some such words as "on the ground" which do not appear in it.

The phrase "lay off" is given the following meanings, amongst others, in the Oxford English Dictionary (1933), vol. 6, p. 130: "to mark or separate off (plots of ground etc.); to plot out land in some way or for some purpose". An example given of its use is: "They directed that the streets should be laid off obliquely". Among the meanings assigned in the Oxford Dictionary to the verb "to plot" are: "to make a plan, map or diagram of;" "to lay down on a map"; "to make a plan of".

The phrase, "by metes and bounds" is defined in The Dictionary of English Law, by Earl Jowitt (1959), p. 1169, as "by measurements and boundaries". In Words and Phrases, Permanent Edition, vol. 27, the phrase "metes and bounds" is given the meanings "boundary lines or limits"; "the boundary lines of land with their terminal points and angles".

In my opinion on the true construction of the opening sentence of s. 9(1), read in the context of the remainder of the sub-section and of the whole act, what is required is that the lands proposed to be taken shall be laid down or marked out on a map or plan and shall also be described by metes and bounds in a written verbal description, which plan and description shall then be deposited in the office of the proper registrar of deeds. It is in my opinion immaterial whether any work is done by a surveyor on the lands or whether any visible marks are placed at the boundaries thereof. The maximum requirement of the sub-section is fulfilled if the plan and description deposited make clear exactly what land is being expropriated. It is plain that in the case at bar this requirement was fulfilled. It appears from the petition and from the deed to Lawrence Crawford filed as an exhibit that the lands of the respondent are part of lot 2 in the 4th concession, Rideau Front, of the Township of Gloucester. The plan and description filed in the Registry office pursuant to s. 9(1) show clearly what lands are taken and that these include the whole of the said lot 2.

[Page 539]

If the true meaning of the words of section 9(1) were doubtful it would be proper to consider the apparent purpose of Parliament in enacting them as disclosed by the whole act. That purpose appears to be two-fold: (i) to permit the Crown in the cases envisaged by the Act to expropriate lands making due compensation therefor; and (ii) to ensure that the lands taken are identified with certainty.

If certainty of description of the lands taken can be achieved without the necessity of a surveyor visiting them and placing marks on their boundaries, it would require plain words to render the performance of such unnecessary acts a condition precedent to the validity of an expropriation, and I find no such words in the section. In construing a statutory provision of which the meaning is not plain assistance may be derived from the presumption expressed in the maxim lex neminem cogit ad vana seu inutilia.

In my opinion the requirements of s. 9(1) of the Expropriation Act have been fulfilled in the case at bar and it follows that the appeal succeeds.

For the above reasons I would allow the appeal, set aside the judgment below and direct judgment to be entered dismissing the petition of right with costs. In the particular circumstances I would make no order as to the costs of the appeal.

Appeal allowed; no costs.

Solicitor for the appellant: W. R. Jackett, Ottawa.

Solicitors for the respondent: Green & Green, Ottawa.