Corp. of Goulbourn v. Regional Municipality of Ottawa-Carleton, [1980] 1 SCR 496

Supreme Court of Canada

Corp. of Goulbourn v. Regional Municipality of Ottawa-Carleton, [1980] 1 S.C.R. 496

Date: 1979-10-02

The Corporation of the Township of Goulbourn, the Corporation of the Township of March, the Corporation of the Township of Nepean, the Corporation of the Township of Osgoode, the Corporation of the Township of Rideau and the Corporation of the Township of West Carleton (Plaintiffs) Appellants;

and

The Regional Municipality of Ottawa-Carleton

and

The Corporation of the Township of Cumberland and the Corporation of the City of Ottawa

and

The Corporation of the Township of Gloucester, the Corporation of the Village of Rockcliffe Park and the Corporation of the City of Vanier (Defendants) Respondents.

1979: February 8, 12; 1979: October 2.

Present: Dickson, Beetz, Estey, Pratte and Mclntyre JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Municipal law—Creation of Regional Municipality—Vesting of assets of County on dissolution subject to an order of the Municipal Board—Power of Ontario Municipal Board—The Regional Municipality of Ottawa-Carleton Act, R.S.O. 1970, c. 407, ss. 135, 136, 137—The Municipal Act, R.S.O. 1970, c. 284, s. 14.

The Regional Municipality of Ottawa-Carleton applied to the Divisional Court for a writ of prohibition to prevent the Municipal Board from fixing compensation to be paid by the Regional Municipality to the area municipalities for the assets of the County of Carleton which passed to the Regional Municipality pursuant to The Regional Municipality of Ottawa-Carleton Act, 1968 (Ont.). Section 135 of that Act now consolidated as R.S.O. 1970, c. 407, provided that on the dissolution of the Corporation of the County of Carleton, subject to an order of the Municipal Board, all the assets and liabilities of the County were to become the assets and liabilities of the regional corporation. Section 137 of the

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Act provided that the Municipal Board upon the application of inter alia any area municipality might exercise any of the powers given to it by s. 14(11)(a), (b) and (d) of The Municipal Act, R.S.O. 1970, c. 284. The interpretative difficulty arising under s. 137(1) related to how much of s. 14 of The Municipal Act was made applicable by the incorporating reference.

The issue in the Divisional Court was narrowed by consent to the jurisdiction of the Municipal Board, consequent upon the dissolution of the County of Carleton, upon an application being made under s. 137 concerning the assets and liabilities of the former County. The Divisional Court declared that the assets in question vested in the Regional Municipality, that an order of the Municipal Board was not a condition precedent to that vesting and ordered that the Municipal Board be prohibited from proceeding with any application for an order to determine the interest of any of the area municipalities in the said assets. The Court of Appeal by a majority affirmed the judgment of the Divisional Court.

Held (Pratte J. dissenting): The appeal should be allowed.

Per Dickson, Estey and Mclntyre JJ.: The referential incorporation of s. 4(11)(a), (b) and (d) is restricted entirely to the provision of subclauses (a), (b) and (d) without the qualifying or delimiting words in the introduction to subs. (11). To restrict the powers of the Board under s. 137 to those exercisable by the Board upon annexation or amalgamation applications pursuant to s. 14(2), as argued by respondents, would reduce the powers incorporated by reference in s. 137 to nearly nothing. Section 137(1) provides for the “exercise” by the Board of the enumerated powers with reference to those matters set out in the balance of the subsection: the dissolution of the County; the removal of the Township of Cumberland from the United Counties; and the dissolution of local boards of health and suburban roads commissions. The argument that the area municipalities prior to the 1968 Act had no interest, legal or equitable, in the assets of the County and could therefore, have no claim for compensation when those assets vested in the Regional Municipality was not persuasive. The position of the area municipalities did not rest upon any legal or equitable interest of a proprietary nature. The right sought to be asserted arose under s. 14 of The Municipal Act, incorporated into the “Ottawa-Carleton Act” by s. 137, and is a right to seek an adjustment of assets to ensure an equitable contribution to the assets of the new Regional Municipality by the area municipalities.

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Per Beetz J. concurring in the result: As is stated by Pratte J. in his dissent, the language used by the Legisture in subsequent statutes cannot be of assistance as regards the meaning of the Act in issue.

Per Pratte J. dissenting: Under The Municipal Act, R.S.O. 1970, c. 284, the inhabitants of each of the appellants were constituted a body corporate, a corporation of township, for certain well defined objects. Prior to the passing of the 1968 “Ottawa-Carleton Act” these same inhabitants with others were also constituted as a distinct body corporate, known as a corporation of county, for other well defined but different objects. The appellants were not members of the County nor were they responsible to their respective inhabitants for the management of the affairs of the County. By the 1968 “Ottawa-Carleton Act” the inhabitants of the appellants were constituted into another body corporate, the Regional Municipality, and the County was dissolved. By s. 135 of the Act there was statutory vesting of the assets and liabilities of the County in the Regional Municipality. However, s. 135 did not create in favour of the appellants an interest in the assets and liabilities that were the County’s. The effect of ss. 14(11) and 137(1) was to give the Municipal Board the power to adjust assets and liabilities as between the municipalities affected by the dissolution but this necessarily implies that the municipalities between which the adjustment is to take place have an interest in the assets and liabilities to be adjusted. An adjustment should not be made in favour of a municipality that has contributed nothing to the newly created Regional Municipality and whose assets and liabilities are not affected by the dissolution of the County.

The argument that the words “in relation to the dissolution of the County of Carleton” in s. 137 were to be given some meaning because of the rule of construction that effect must be given to all the words of a statute is not persuasive. First, because it is not absolute but is rather one of many guides and second, because it would be extraordinary if a municipality in no way affected by the dissolution of the County were to have a right to claim compensation for a non-existent interest in the County’s assets and liabilities. In context the view that the words might have been inserted ex abundanti cautela or may be under some misapprehension as to the state of the law is to be preferred.

[Township of Scarborough v. City of Toronto, [1956] S.C.R. 450; Kirkness (Inspector of Taxes) v. John Hudson & Co. Ltd., [1955] A.C. 696 (H.L.); In re MacManaway and In re The House of Commons (Clergy Disqualification) Act, 1801, [1950] A.C. 161;

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Hayes v. Mayhood et al., [1959] S.C.R. 568; The Village of Crystal Beach v. The Township of Bertie, [1954] O.W.R. 441; R. v. Black and Decker Manufacturing Co. Ltd., [1975] 1 S.C.R. 411; Black-Clawson International Ltd. v. Papierwerke Waldhof-Aschaffenburg AG, [1975] 1 All E.R. 810; Laidlaw v. The Municipality of Metropolitan Toronto, [1978] 2 S.C.R. 736, referred to.]

APPEAL from a judgment of the Court of Appeal for Ontario[1] dismissing an appeal from a judgment of the Divisional Court declaring that certain assets had vested in the Regional Municipality of Ottawa-Carleton and prohibiting the Ontario Municipal Board from proceeding with applications pursuant to s. 14(11) (a), (b) and (d) of The Municipal Act, R.S.O. 1970, c. 284. Appeal allowed, Pratte J. dissenting.

R.A. Bell, Q.C., and J.R. Mclninch, for the appellants.

G.J. Smith, Q.C., and P.M. Perell, for the Regional Municipality.

R.W. Baldwin, for the Corporation of the Township of Cumberland.

D.V. Hambling, Q.C., for the Corporation of the City of Ottawa.

The judgment of Dickson, Estey and Mclntyre JJ. was delivered by

ESTEY J.—The Regional Municipality of Ottawa-Carleton applied to the Divisional Court for a writ of prohibition to prevent the Municipal Board from fixing compensation to be paid by the Regional Municipality to the area municipalities for the assets of the County of Carleton which passed to the Regional Municipality when The Regional Municipality of Ottawa-Carleton Act, 1968, (Ont.) dissolved the County and incorporated the Regional Municipality. This statute is Chapter 115 of The Statutes of Ontario, 1968 and is now consolidated as R.S.O. 1970, c. 407. For consistency and convenience, I will refer to the section numbers from the 1970 Revised Statutes. The principal operative section of the Act, so far as we are concerned, is s. 135, which reads as follows:

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(1) The Corporation of the County of Carleton is dissolved on the 1st day of January, 1969, and on the same date the Township of Cumberland is withdrawn from the County of Russell and the United Counties for all purposes.

(2) Subject to an order of the Municipal Board, all the assets and liabilities of the County of Carleton become, on the 1st day of January, 1969, the assets and liabilities of the Regional Corporation, and all documents and records kept by the clerk or treasurer or any other officer of the County of Carleton shall be transferred to the clerk of the Regional Corporation. 1968, c. 115, s. 154.

It will be observed at once that there is no reference to any compensation payable by the recipient Regional Corporation to either a trustee on behalf of the now dissolved County or to its component area municipalities. It may be convenient to make the observation at the outset that sometimes the legislation refers to “compensation” as being not payable consequent upon the restructuring of government units and agencies, but in the sections of the statute with which we are immediately concerned here, the term compensation is not used, but the idea is expressed in the words “the Municipal Board may...make all such adjustments of assets and liabilities as between the municipalities...as the Board may consider equitable;”. In the course of argument counsel for all parties found it convenient to occasionally use the word compensation to include the adjusting process which may sometime occur where the municipalities are “affected” by the action being taken in the statute.

A similar provision relating to the roads commissions in the area now embraced by the regional government is found in s. 136 which provides for the dissolution of the Eastview Suburban Roads Commission and the Ottawa Suburban Roads Commission, and “subject to an order of the Municipal Board”, all assets and liabilities of the dissolved Commissions are transferred to the Regional Corporation again without provision for compensation.

Similarly, under s. 76 of the statute, provision is made for the dissolution of existing Boards of Health in the area municipalities and the County of Carleton, and for the effective transfer of their respective assets and liabilities to the Regional

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Corporation. Again, no reference is made to the payment of any compensation or the adjustment of assets and liabilities as a result of the dissolution and effective transfer of assets mentioned. Interestingly, the vesting of assets pursuant to s. 76(2) is not made “subject to an order of the Municipal Board” as is the case in ss. 135 and 136.

This then brings one to the heart of the controversy, s. 137, which provides:

(1) Except as provided in this Act, the Municipal Board upon the application of any area municipality[2], the Regional Corporation or the United Counties may exercise any of the powers under clauses a, b and d of subsection 11 of section 14 of The Municipal Act in relation to the dissolution of the County of Carleton and the removal of the Township of Cumberland from the County of Russell and the United Counties and the dissolution of local boards of health and suburban roads commissions under this Act.

(2) In the event of any doubt as to whether any particular asset or liability is vested in the Regional Corporation under this Act, the Municipal Board upon application has power to determine the matter as sole arbitrator and sections 94 and 95 of The Ontario Municipal Board Act do not apply to decisions or orders made in the exercise of such power. 1968, c. 115, s. 156.

Turning to s. 135(1) which is, of course, the key organizational section in the statute from the point of view of the restructuring of the municipal government of the area, it is to be observed that subs. (2) is prefaced by the words “Subject to an order of the Municipal Board”. The Regional Municipality did indeed, on November 24, 1969, make an application under ss. 135 and 136 to the Ontario Municipal Board for an order confirming the vesting of the assets and liabilities of the former County of Carleton and the former roads commis-

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sions in the Regional Municipality. The Regional Municipality on October 4th, 1974 abandonned this application to which before its abandonment the Township of North Gower (now amalgamated into the Corporation of the Township of Rideau) objected on the grounds that a vesting order should not be made prior to a determination under s. 137 of the interest of the Township of North Gower in the assets and liabilities of the dissolved County. At the same time (29 January 1970), the Township of North Gower made its own application under ss. 135, 136 and 137 for the purpose of determining the respective interests of the parties in the assets in question. The Ontario Municipal Board made an interim order dated May 5, 1970 directing the Regional Municipality to provide the area municipalities with inventories of the assets and liabilities in question. The Township of Nepean, by an application dated November 1, 1973 to The Ontario Municipal Board, sought a determination under s. 137 of the interests of Nepean and the other area municipalities in the dissolved municipal organizations. In the end, therefore, the applications before the Municipal Board from two area municipalities asked the Board to determine the adjustments of assets and liabilities between municipalities arising out of the dissolution of the County and the related questions with reference to the roads commissions pursuant to ss. 135, 136 and 137.

The City of Ottawa requested the Board, on the return of these applications in December 1974, to state a case to the Divisional Court regarding the Board’s powers under s. 137 of the Act and when the Board failed to do so but rather fixed a date for hearing of these applications, the Regional Municipality instituted proceedings in the Divisional Court by way of an application:

(a) for a declaration that the assets and liabilities of the County of Carleton had vested in the Regional Municipality with effect January 1, 1969; and,

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(b) for an order prohibiting the hearing by the Municipal Board of the applications by the area municipalities determining the interests of the area municipalities in the assets of the County of Carleton, the Eastview Suburban Roads Commission and the Ottawa Suburban Roads Commission.

In fact the issue before the Divisional Court was narrowed by the consent of all parties to the question of the jurisdiction of the Board with reference to the assets and liabilities of the former County of Carleton. All parties from that time forward have been in agreement that the Municipal Board has jurisdiction under the aforementioned sections of the statute with reference to the adjustment of the assets and liabilities in relation to the dissolution of the local boards of health and the suburban roads commissions, and the removal of the Township of Cumberland from the United Counties. The sole issue remaining before the Divisional Court and now before this Court is the jurisdiction of the Board, consequent upon the dissolution of the County of Carleton, upon an application being made under s. 137 concerning the assets and liabilities of the former County.

The Divisional Court, in response to the application by the Regional Municipality, issued the following order:

1. IT IS DECLARED THAT the assets of the County of Carleton, The Eastview Suburban Roads Commission and The Ottawa Suburban Roads Commission as they existed on the 31st day of December 1968 vested in the Regional Municipality of Ottawa-Carleton on the first day of January 1969 pursuant to the Regional Municipality of Ottawa-Carleton Act, S.O. 1968, c. 115, sections 154, 155 and 156 (now R.S.O. 1970, c. 407) sections 135, 136 and 137), and that an order of the Ontario Municipal Board was not a condition precedent to that vesting;

2. IT IS ORDERED THAT the Ontario Municipal Board be prohibited from proceeding with any application for an order to determine the interest of any of the area municipalities in the Regional Municipality of Ottawa-Carleton in the assets of the County of Carleton, but without prejudice to the right of the said Board to deal with matters of compensation relating to the dissolution of local boards of health and suburban roads commissions.

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3. IT is ORDERED THAT there be no award as to costs.

All parties had effectively agreed to the issuance of para. one and none of the parties opposed its issuance by the Divisional Court or now ask that this part of the order be struck out. With reference to para. one, it is noted that in the Divisional Court O’Leary J., in discussing the role of the Municipal Board under s. 135(2), observed in passing that:

One would have thought that no such application [to the Board] was necessary because of the wording of s. 135(2)….

In the majority judgment, the late Mr. Justice Garrett observed:

It seems to be clear that the assets of the old County of Carleton were vested in the Region by virtue of the passing of the Act and that such vesting is not dependent on any order of The Ontario Municipal Board.

Wilson J., speaking on behalf of the majority of the Court of Appeal, stated with reference to the meaning of these opening words in s. 135(2):

I concur in the view expressed by Mr. Justice O’Leary that these opening words have reference to the adjustment powers of the Board under s. 137(1)…

I can find no such expression of view by Mr. Justice O’Leary in his dissent although it may well be inherent from his above-quoted observation with reference to there being no need for an order by the Municipal Board as a condition precedent to the operation of s. 135. Recognizing that some meaning must, wherever possible, be attributed to all words in a statute, it would appear that either the opening words of subs. (2) refer to a condition precedent in the form of a Board order, or they refer to an order of the Municipal Board made under some other provision in the Act. The former meaning is most unlikely and unrealistic. The Legislature, having dissolved the County under subs. (1) and having provided by subs. (2) that the assets of the dissolved County become the assets of the new governmental entity (the Regional Corporation) would not without the clearest words have made such disposition of assets and liabilities subject to the order of a third party unguided by any

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standard or directives in the subsection. It is therefore reasonable to conclude that the reference in s. 135(2) is to the power given to the Board under s. 137(2) to settle any doubt as to whether a particular asset or liability is vested in the Regional Corporation by reason of the operation of this statute. It may be as well that the reference in s. 135(2) is to the adjusting powers granted to the Board under s. 137(1) (which incorporates s. 14 of The Municipal Act as discussed below) with reference to the adjustment of assets and liabilities “between the municipalities including counties...as the Board may consider equitable”. However, the adjusting powers in s. 137(1) refer to the consequences of the vesting or devolution of assets under s. 135 and would not appear to affect the title of the Regional Corporation to the assets. Section 137(2) does, however, give the Board an express power to resolve any doubt as to whether particular assets vested in the Regional Corporation by reason of the happening of the events described in s. 137(1), which includes the dissolution of the County, the removal of the Township of Cumberland from the United Counties, and the dissolution of the local boards of health and the roads commissions. While the statute does not create any role for the Divisional Court in the process of vesting assets from one governmental unit to another, the Divisional Court has done no more than make a declaration as to the meaning of s. 135(2) and in doing so, that Court has avoided any positive assertion as to the Board’s powers in connection with the other sections of the Act mentioned in the order.

The Ontario Court of Appeal (Jessup J.A. dissenting) dismissed an appeal from the judgment of the Divisional Court. Wilson J.A., with whom MacKinnon J.A. concurred, stated:

I think that in so holding the majority of the Divisional Court have given effect to the distinction between horizontal amalgamation and vertical amalgamation and I would respectfully concur with their analysis. There is, in my view, nothing in the Act to suggest that the individual Townships are each bringing their respective shares of the County of Carleton assets into regional government. Indeed, s. 135 of the Act in subsection (1) dissolves the County and in subsection (2) states that the assets and liabilities of the County [my emphasis] become the assets and liabilities of the Region. It is a

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one-step transference of assets, not a two-step transference. The assets and liabilities do not go from the County to the Townships to the Region. They go from the County to the Region. Accordingly, it would be completely inappropriate to state that the Townships were not to be entitled to compensation. How could they be so entitled? There was no break-up of the County assets among them nor did they themselves have any status as of the date of the dissolution of the County. They had already been melded into the body corporate of the Region under s. 2(1) of the Act.

. . .

I accept the submission made by Mr. Smith on behalf of the Region that the powers conferred on the Board in s. 137(1) of the Act by the incorporation into it by reference of sub-clauses (a), (b) and (d) of s. 14(11) of The Municipal Act must be construed in their contextual framework in The Municipal Act. They can be used only where there is horizontal amalgamation or annexation with a resultant deprivation of assets.

Wilson J.A. in using the expression “They had already been melded into the body corporate of the Region” apparently refers to the area municipalities rather than to the assets of the County. The area municipalities of course were not “melded” or “amalgamated”. Their respective inhabitants were “constituted” as a body corporate under the name of the Regional Municipality of Ottawa-Carleton. The townships, villages and cities continued in existence although their powers and functions may have been varied in the new organization.

Jessup J.A. would have allowed the appeal for the reasons given by O’Leary J., dissenting, in the Divisional Court who stated in part:

I would have thought that once the applicant conceded that the area municipalities could invoke the powers of the Ontario Municipal Board under section 14(11) in regard to the dissolution of local boards of health and suburban roads commissions, that the applicant would also have to agree that the area municipalities could invoke the powers of the Municipal Board in regard to the assets formerly owned by the County of Carleton, since the right of the said municipalities to do either is contained in the same words, in the same section, namely, section 137(1) of The Regional Municipality of Ottawa-Carleton Act.

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The applicant argued that the Municipal Board only has powers to adjust assets under section 14(11) of The Municipal Act where there has been made to it an application for amalgamation of municipalities or for annexation of the whole or part of one municipality to another under section 14(2) of The Municipal Act; and that the Municipal Board not having before it any such application, it has no power under section 14(11) to adjust assets “in relation to the dissolution of the County of Carleton” in spite of the existence of those words in section 137(1) of The Regional Municipality of Ottawa-Carleton Act. If that argument were valid, the Municipal Board would not have the power to adjust assets in regard to the dissolution of local boards of health and suburban roads commissions, and yet it is conceded by the applicant the Municipal Board does have such power.

The issue before this Court is whether or not the Divisional Court and the Court of Appeal erred in ordering that the Municipal Board be prohibited from entertaining applications by the townships for an adjustment of assets and liabilities upon the dissolution of the County of Carleton. The issue turns on the interpretation of s. 137 of the Act.

The interpretative difficulty arising under s. 137(1) relates to how much of s. 14 of The Municipal Act, R.S.O. 1970, c. 284, (having regard to comments in the foregoing paragraphs) is made applicable by the incorporating reference. Section 14 of The Municipal Act is in that part of that Act headed “Alteration of Boundaries”, and subs. (2) refers only to applications to the Municipal Board for an order by that Board amalgamating municipalities or annexing to a municipality the whole or part of another municipality. Subsection 11(a), (b) and (d), to which reference is made in the incorporating section of the Ottawa-Carleton statute, s. 137, provides as follows:

(11) The Municipal Board may, by any order made pursuant to an application under this section or by subsequent order or orders,

(a) make all such adjustments of assets and liabilities as between the municipalities, including counties, affected by any such order as may be agreed upon or, in default of agreement, as the Board may consider equitable;

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(b) create, amalgamate or dissolve such local boards and make such adjustments of assets and liabilities of local boards as may be agreed upon or, in default of agreement, as the Board may consider equitable;

. . .

(d) appoint one or more referees, who shall have all the powers mentioned in section 52 of The Ontario Municipal Board Act, to inquire into and report to the Board upon the adjustments of assets and liabilities and of rights, claims, liabilities and obligations referred to in clauses a, b and c, or any of them, the report to be filed with the Board within such time as the Board may from time to time allow, and the Board shall consider the report and may hear such representations with respect thereto as it may see fit and may adopt, vary or amend the report or refer it back to the referee or referees for further consideration, and the order of the Board adopting the report or varying or amending the report is final and conclusive and not open to question or appeal and is binding upon all municipalities and local boards affected thereby;

The incorporation by reference of a segment of another statute is always fraught with danger and difficulty. For example, these clauses were included in s. 14 because of the nature of the orders the Board is qualified to issue under that section and so the introduction to subs. (11) states in part that the Board may, in connection with “an order made pursuant to an application under this section”, make the adjustments as described. Section 14 orders are limited by subs. (2) thereof to orders for amalgamation of or annexation to, municipalities. Neither of these actions were undertaken in this statute (except possibly that taken with reference to the Township of Cumberland) and in any case the action taken was done by the Legislature itself and not by order of the Board. Consequently, the reference in clause (a) to an “order” in the phrase “by any such order” must be adapted to the statutory pattern of The Regional Municipality of Ottawa-Carleton Act and hence must be taken to refer to the legislative action bringing into being the Regional Corporation and bringing about the inclusion therein of the Township of Cumberland, and the dissolution of the County and the dissolution of the boards of health and roads commissions. To read the statute otherwise would, as

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Justice O’Leary stated in the Divisional Court, be to reduce the powers incorporated by reference in s. 137 to nothing or nearly nothing.

The appellants have strenuously argued that the incorporation by reference of the above‑mentioned three clauses of subs. (11) of s. 14 of The Municipal Act into this statute through s. 137(1) necessarily results in a jurisdiction in the Board to adjust the assets and liabilities amongst and between the participating governmental entities so as to compensate the contributory area municipalities for the vesting of the County assets, to the acquisition of which they have contributed, in the Regional Corporation. The respondents, on the other hand, submit that the incorporating reference (except in respect of the roads commissions and the health boards) must be limited to the type of application which may be brought under s. 14(2), that is annexations and amalgamations.

It is patently inconsistent to interpret the reference to s. 14(11) as including any more than subparas, (a), (b) and (d) for the simple reason that subs. (11) itself is prefaced by a reference to an order made pursuant to s. 14 which by subs. (2) is limited to amalgamation and annexation orders, neither of which occur under s. 137 or the Act of which it forms a part. I therefore conclude that the referential incorporation is restricted entirely to the provision of subclauses (a), (b) and (d), without the qualifying or delimiting words in the introduction to subs. (11). The subsection provides for the “exercise” by the Board of the enumerated powers with reference to those matters set out in the balance of s. 137(1) of the Act: the dissolution of the County of Carleton; the removal of the Township of Cumberland from the United Counties; and the dissolution of the local boards of health and suburban roads commissions.

I am not persuaded by the argument that the area municipalities, prior to the passage of The Regional Municipality of Ottawa-Carleton Act, 1968 (Ont.) had no interest, legal or equitable, in the assets of the County and could, therefore, have no claim for compensation when those assets vested in the Regional Municipality. In my opin-

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ion, the position of the area municipalities does not rest upon any legal or equitable interest of a proprietary nature. The right sought to be asserted by the area municipalities arises under s. 14 of The Municipal Act, R.S.O. 1970, c. 284, incorporated into the Ottawa-Carleton statute by s. 137, and it is a right to seek an adjustment of assets to ensure an equitable contribution to the assets of the new Regional Municipality by the area municipalities. Adjustment in this context is a broader term than compensation and, in my view, gives the Municipal Board power to make such orders as may be required to ensure an equitable contribution from the component parts of the new Regional Municipality.

I move now to the next part of s. 137(1) in order to ascertain the range of the Board’s jurisdiction or authority in which it might apply the powers flowing from clauses (a), (b) and (d) as drawn from The Municipal Act. It is said by the appellants that, where the Legislature intended that there be no compensation on the transfer of assets and liabilities, the Act so provides. It follows, it is contended, that silence reveals an intent to provide for compensation and that the Board is authorized to determine such compensation under s. 137(1). There are indeed five such provisions in the Act. In s. 31(6) of the 1968 statute (not repeated in the R.S.O.) provision is made for the transfer by the area municipalities to the Regional Corporation of all mechanical and other equipment used for assessment purposes if requested by the Regional Corporation. The section expressly provides that this shall be “without compensation”. Section 27(3) vests in the Regional Corporation all water works and related equipment, all without “compensation or damages”. The same provision is found in s. 31(5)(a) with reference to water courses assumed by the Regional Corporation; and a like provision is found in s. 64(1)(a) with reference to roads assumed by the Regional Corporation in an area municipality. In s. 80(1), the Island Lodge and Geriatric Centre is vested in the Regional Corporation without compensation to the former owner, the City of Ottawa. In each of these cases, the property in question was in effect trans-

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ferred from an area municipality to the regional corporation. Where such a transfer occurs between existing and continuing governmental units, it might be assumed that compensation to the transferor would be paid by the transferee. Furthermore, title to the actual asset in question was in the area municipality which contributed that asset to the Regional Corporation upon the operation of the vesting provision. Compensation might, in such circumstances, be considered the rule rather than the exception, and one might even expect to find in such an enactment provision for compensation. It would appear that the Legislature, in considering these aspects of the matter was moved to expressly rule out compensation.

The condition of the assets of the County is in law entirely different. The County is not a continuing corporation or governmental unit and is not in the ordinary sense of the term the transferor of the assets. There is no continuing recipient for any compensation which might arise by adjustment, payment or otherwise. The title to the assets in question was admittedly in the name of the County and not in the area municipalities. The area municipalities had no right in law to call for a transfer or otherwise to dispose of these assets with or without the dissolution of the County. The area municipalities had two connections with the assets. Firstly, they contributed financially to their acquisition by the County, and secondly, the assets were used by the County in the provision of services or utilities to the ratepayers in the area municipalities as well as to the public at large in those instances where that general public had recourse to the territory comprised in the Counties. There is nothing to be gained by analogizing between the area municipalities in their relationship to the County, and shareholders in a corporation and their relationship to the corporation. If there were any useful application of any such analogy, the Legislature in the clearest terms has taken pains to ignore it. I do not derive any assistance therefrom in the determination of the Municipal Board’s authority under s. 137 from the presence of compensation denials in other sections of the Act. Furthermore if this approach be valid, the Board

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would have no jurisdiction with regard to the other dissolutions mentioned in s. 137(1), but all parties concede that the Board has jurisdiction in those instances.

Counsel for the respondent Regional Municipality urged a reading of s. 137(1) on the basis that punctuation should be inserted so as to divide it into two rather than three segments, the first dealing with the removal of the Township of Cumberland and the second with the dissolution of the local boards. Such a reading puts a strain on the plain language employed by the Legislature and in order to breathe meaning into all words and expressions employed by the draftsman, the subsection should be read as making the powers of clauses (a), (b) and (d) available to the Board in respect of their action resulting from the dissolution of the County, the removal of Cumberland, and the dissolution of the local boards. To do otherwise is to read the subsection as though the words “in relation to the dissolution of the County” were not present. Such a reading would also empower the Board to exercise such discretion with reference to the last two dissolutions mentioned in the subsection but not with reference to the dissolution first mentioned.

The Ontario Municipal Board in discussing the adjustment of assets consequent upon a municipal reorganization occurring in the County of York prior to The Municipality of Metropolitan Toronto Act, 1953 (Ont.), c. 73, described the interest of the ratepayers as follows:

Turning to the larger question of a general adjustment of assets and liabilities with respect to the assets to be taken over by the Metropolitan Council in the foregoing proposals, it is the considered opinion of the board, as previously stated in the specific proposals, that these assets should be taken over and operated for the benefit of the entire area without adjustment except for the assumption of outstanding indebtedness. In the board’s opinion, the true nature of these assets is often misunderstood. Although they have been built and financed by the various individual municipalities and their local boards, they are not in a legal sense the property of the residents or ratepayers for the time being resident within the municipality where the assets are located. They are, in every sense of the word, public property and are held

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in trust for the use and benefit of the present and future residents of the area within the jurisdiction of the local authority, But that area has no fixed and predetermined limits and it may be indefinitely enlarged or included with other areas for the purposes of local government at the will of the legislature. The municipal government is, after all, a government and not a commercial corporation which can wind up its affairs, sell its assets and distribute the proceeds among its shareholders. For this reason it seems to the board that so long as the residents of the particular area are not deprived of the beneficial use of the assets built or maintained for them by their local government, the management and operation of the asset by a new type of local government which will be, in effect, a new trustee, deprives them of no rights whatever, and entitles them to no individual or collective compensation.

(Ontario Municipal Board, 20 January 1953, as quoted in The Corporation of the Township of Scarborough v. The Corporation of the City of Toronto[3], at pp. 456-7.)

The heart of the problem then is the role of the Board under s. 137 in the case of:

(a) the dissolution of the County of Carleton;

(b) the dissolution of the local boards of health;

(c) the dissolution of the suburban roads commissions;

(d) the removal of the Township of Cumberland from the United Counties.

In the case of (a), (b) and (c), the assets and liabilities of the dissolved entities “become” the assets and liabilities of the Regional Corporation by specific provision in the statute. In (d), the issue arises not with reference to the assets of the Township of Cumberland but with reference to Cumberland’s desire for some credit for the loss of its connection with the assets of the United Counties in which it was formerly located.

The City of Ottawa and the Regional Corporation have taken the view that the Municipal Board has no jurisdiction to adjust assets and liabilities “in relation to” (a) above, but has such jurisdic-

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tion “in relation to” (b) and (c) above. It is difficult to understand how these parties respondent have agreed that the Board has jurisdiction in the case of the removal of Cumberland ((d) above), and the dissolution of the boards and commissions ((b) and (c) above), but not with respect to the dissolution of the County. All three instances (that is (a), (b) and (c) above) share these features: the assets in question were held by a legal entity other than the claimant area municipalities; the ‘transferor’ of the assets disappeared and was not thereafter available to receive any compensation or credit by adjustment; and there is no deprivation of enjoyment or utilization of the asset by the claimant save to the extent that the asset is put to a further or more extensive or intensive use by the Regional Corporation to the detriment of the inhabitants of the claimant area municipalities. It may be, as was alleged by the appellant, that the respondents would participate or share favourably in the adjustment in (b) and (c) but unfavourably in (a). I prefer to accept the respondents’ submission as being in support of the line of reasoning followed by the majorities in the courts below. I see no distinction, however, in fact, in law or in logic between the position of the Municipal Board vis-à-vis the dissolution of the health boards and road commissions under (b) and (c) above and its position vis-à-vis the dissolution of the County under (a) above.

The last question in respect of s. 137 is the role of the Municipal Board “in relation to” the removal of the Township of Cumberland from the United Counties ((d) above). Legally the issue is quite different from that arising in the other three elements of this municipal reorganization. There was no transfer (or vesting) of assets from or to the Township corporation. There was, however, a real separation from the Township and its inhabitants of the assets of the United Counties, to the cost of which the ratepayers of Cumberland contributed. These assets the inhabitants of Cumberland were able to enjoy prior to the withdrawal of the Township from the County. As members of the provincial community it might be argued that the inhabitants will continue to enjoy the benefits of these assets to the extent they may physically have occasional recourse to the territory within the

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United Counties. These and other consequences of such a reorganization of the structure in municipal government are the very matters to be considered by the Board in the discharge of its duties under clause (a) of s. 14(11) of The Municipal Act. In this, all parties in this proceeding are in agreement and that agreement I respectfully share.

Shortly after the passage of The Regional Municipality of Ottawa-Carleton Act, 1968 (Ont.), the Legislature of the province enacted similar statutes with reference to other counties and regions of Ontario; for example, The Regional Municipality of Niagara Act, 1968-9, 1968-9 (Ont.), c. 106. A comparision of like statutes enacted by the same Legislature is at most of peripheral assistance in determining the proper interpretation of the statute before the Court. Indeed, much debate has taken place in the courts over the years as to whether a reference to posterior legislation is a permissible tool of statutory construction. (Vide Maxwell on Interpretation of Statutes (12^th ed.) p. 69 et seq.; vide also Kirkness (Inspector of Taxes) v. John Hudson & Co. Ltd.[4] Here we are not concerned with amendment and repeal but with the help to be gained from a scrutiny of comparable legislation in the same field. Like most other aids to statutory construction, the Court must first be confronted with ambiguity of statutory expression which here we certainly have. In In re MacManaway and In re The House of Commons (Clergy Disqualification) Act, 1801[5] Lord Radcliffe observed at p. 176:

The law does not in all cases reject such aids to interpretation. In Ormond Investment Co. Ld. v. Betts Lord Buckmaster, after quoting a passage from the judgment of Lord Sterndale in Cape Brandy Syndicate v. Inland Revenue Commissioners, which ran: “I think it is clearly established in Attorney-General v. Clarkson that subsequent legislation on the same subject may be looked to in order to see the proper construction to be put upon an earlier Act where that earlier Act is ambiguous. I quite agree that subsequent legislation, if it proceed upon an erroneous construction of previous legislation, cannot alter that previous legislation; but if there be any ambiguity in the earlier legislation then the subsequent legislation may fix the proper interpretation which is to

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be put upon the earlier”, proceeded as follows: “This is, in my opinion, an accurate expression of the law, if by ‘any ambiguity’ is meant a phrase fairly and equally open to divers meanings…”

The conditions under which a later Act may be resorted to for the interpretation of an earlier Act are therefore strict: both must be laws on the same subject, and the part of the earlier Act which it is sought to construe must be “fairly and equally open to divers meanings”.

A similar approach was taken by this Court in Reginald Hayes v. Maude Edwards Mayhood and Western Leaseholds Limited[6], per Martland J. This was the process followed in MacManaway, supra. I point out these almost parallel and successive statutes only to put in perspective the development of the regional concept by the Legislature and the technique of incorporating certain provisions from The Municipal Act in these statutes. The nearest in time to the Ottawa-Carleton statute is the above-mentioned Niagara Regional enactment. It is interesting to note that in the Niagara statute, the legislative action which is concentrated in ss. 135, 136 and 137 of the Ottawa-Carleton Act is divided into two different parts of the Niagara Act. The first part deals with the restructuring of the area municipalities, and a much later portion of the statute deals with the dissolution of the county and the suburban roads commissions. For reasons not made apparent in the enactment, the statute incorporates s. 14 of The Municipal Act by two different modes of incorporation by reference. On the one hand, the dissolution of the county found in another part of the Act, continues the referential incorporation technique of s. 137 of the Ottawa-Carleton Act. On the other hand, s. 2(3) of the Niagara statute dealing with the “amalgamations, annexations and dissolutions provided for in this part”, which are the area municipality reorganizations, provides:

For the purposes of every Act, the amalgamations, annexations and dissolutions provided for in this Part shall be deemed to have been effected by orders of the Municipal Board not subject to section 42 of The

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Ontario Municipal Board Act or to petition or appeal under section 94 or 95 of such Act, made on the 27th day of June, 1969 pursuant to applications made under sections 14 and 25 of The Municipal Act, being chapter 249 of the Revised Statutes of Ontario, 1960, and, subject to the provisions of this Act, the Municipal Board, upon the application of any area municipality or any local board thereof or of its own motion, may exercise its powers consequent upon such amalgamations, annexations and dissolutions, and sections 94 and 95 of The Ontario Municipal Board Act do not apply to decisions or orders made in the exercise of such powers and “municipalities” in clause a of subsection 11 of section 14 of The Municipal Act includes, for the purposes of such clause, the area municipalities to which territory is annexed.

(Emphasis added.)

The awkwardness of the incorporating technique of s. 137 has thus been avoided by making clauses (a), (b) and (d) of subs. (11) directly and grammatically reconcilable with the terminology of the operative sections of the Niagara Act. Other examples of this type of regionalization by legislation are found in:

The Regional Municipality of York Act, 1970, S.O. 1970, c. 50

The Regional Municipality of Sudbury Act, 1972, S.O. 1972, c. 104

The Regional Municipality of Waterloo Act, 1972, S.O. 1972, c. 105

The Regional Municipality of Durham Act, 1973, S.O. 1973, c. 78

The Regional Municipality of Haldemand-Norfolk Act, 1973, S.O. 1973, c. 96

The Regional Municipality of Halton Act, 1973, S.O. 1973, c. 70

The Regional Municipality of Hamilton-Wentworth Act, 1973, S.O. 1973, c. 74

The Regional Municipality of Peel Act, 1973, S.O. 1973, c. 60.

The conundrum is completed by the subsequent legislation with respect to the restructuring of municipal government in The Ottawa-Carleton Amalgamation and Elections Act, 1973, being Statutes of Ontario, 1973, c. 93, where the Legislature enacts an identical provision to s. 2(3) of the aforementioned Niagara statute with reference to

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a further reorganization of some of the area municipalities.

The Municipal Board, in the disposition of its jurisdiction under clause (a), of s. 14 may, of course, come to any of an almost infinite array of possible conclusions with reference to what may be “equitable” as regards adjustments of assets and liabilities as between the affected municipalities, and I have expressly refrained from making any reference to the validity of the submissions made so energetically before this Court as to the real or potential windfall position of the Cities of Ottawa and Vanier and the real or potential deprivation in whole or in part which might be suffered by the inhabitants of the several area municipalities other than these two cities and the Township of Cumberland. The application of the authority granted under clause (a) is, of course, for the Board and the Board alone as the Board in so applying this authority neither exceeds the limitation of the authority nor fails to exercise it.

I wish to make it clear that in reaching this conclusion on the interpretation of the various provisions of the Ottawa-Carleton statute, I do not wish to be taken as adopting the submission made to this Court that somehow the ratepayers or inhabitants of an area municipality or a municipal unit comprised in the County of Carleton has an “equitable interest” through their municipal corporation in the assets of the County of Carleton. Nor does it follow that the affected municipalities themselves have an equitable interest in the assets of the County of Carleton. Reference was made in argument by all parties to The Village of Crystal Beach v. The Township of Bertie[7] and particularly the statement therein of Aylesworth J.A. at p. 443. It was there stated that upon a division of a group of ratepayers for municipal or school purposes, an adjustment between the respective groups of ratepayers shall be made as to the municipal assets on a basis whereby each group of ratepayers “who have paid for municipal or school assets will receive an equitable share of those assets where a territorial change occurs...”. Aylesworth J.A. was there making reference to the standards for division rather than the classification of interests

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or ownership rights of ratepayers in municipal corporation assets.

Similarly, I do not wish to be taken as having reached this conclusion on the basis that there has occurred a “horizontal amalgamation” as distinct from a “vertical amalgamation”. The interpretation of the operative portions of the statute is not, in my view, assisted by analogizing to either corporate proceedings under the corporation legislation of the province nor to other municipal proceedings which in the statute are referred to as amalgamation and annexation. Here the Legislature has reorganized the structure of municipal government with reference to a segment of the province defined as the Regional Area of the Regional Municipality of Ottawa-Carleton by creating a new corporation, the Regional Corporation, and dissolving the old second-tier unit of government, the Corporation of the County of Carleton; by enlarging the regional government area; and rearranging some local boards and commissions within it. This reorganization was brought about by the actions taken by the Legislature rather than by more limited orders of the Municipal Board under existing legislation. Although the term amalgamate as employed in s. 14 and elsewhere of The Municipal Act is not defined, that term in general law sometimes connotes the combination of two or more legal entities into one ongoing legal entity which is functionally deemed to be a continuation of all pre-existing legal entities brought together in the amalgamation (vide Her Majesty the Queen v. Black and Decker Manufacturing Company, Limited[8], or which may result in a new legal entity with all participating and amalgamating legal entities dying in the process. In either concept, the participating legal entities cease to exist individually which, of course, is not the case here, since all affected municipalities continue as area municipalities (other than the County of Carleton) in the new municipal government structure. As for vertical amalgamation, if there be such a thing in municipal law, that did not occur either because the County of Carleton did not amalgamate with area or other municipalities to form the Regional

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Municipality, but was dissolved. I therefore do not find this analogy or the line of reasoning to be of assistance in the interpretation of this statute.

The majority of the Divisional Court in reaching these conclusions determined that proper recourse could be had to a report made to the Province of Ontario on the subject of municipal government in the Ottawa area by a special commissioner appointed for the purpose by the Minister of Municipal Affairs. The majority of the Court of Appeal, following the decision of the House of Lords in Black-Clawson International Ltd. v. Papierwerke Waldhof-Aschaffenburg AG[9], concluded otherwise on this issue. Spence J. speaking for the Court in Marion Viola Laidlaw v. The Municipality of Metropolitan Toronto[10], stated with reference to the use of a Law Reform Commission report as an aid to statutory interpretations, at p. 743:

It has been established that such report may be considered not by seeking to interpret the statute in accordance with the recommendations made in the report but to determine the problem which faced the legislators and which they must have sought to meet in the new statute:

The problem facing the Legislature which was met by the passage of this Act was not the detailed and consequential problem of inter-municipal adjustments for asset and liability transfers, but rather the larger issue of the restructuring of the component units of municipal government in the regional concept. I do not therefore believe that this report should find its way into the interpretative process here.

For these reasons, I would allow the appeal, set aside the order of the Court of Appeal and para. 2 of the order of the Divisional Court so as to permit the Municipal Board to proceed with the hearing of these applications. Costs both in this Court and in the courts below shall be to the appellants as against the respondent Regional Municipality of Ottawa-Carleton and the Corporation of the City

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of Ottawa, with no order as to costs for or against the other parties.

The following are the reasons delivered by

BEETZ J.—I agree with Mr. Justice Pratte that reference to the language used by the Legislature in subsequent statutes cannot be of assistance as regards the meaning of The Ottawa- Carleton Act, and is unwarranted.

I otherwise agree with Mr. Justice Estey.

The following are the reasons delivered by

PRATTE J. (dissenting)—I have had the advantage of reading the reasons proposed for delivery by my brother Estey and contrary to him I am of the opinion that this appeal should fail.

There is no dispute as to the facts; they are well summarized by Mr. Justice Estey who also quotes all relevant statutory provisions. I will attempt to avoid any repetition except where necessary for a better understanding of these reasons.

The only real issue before us is as to whether, consequent upon the dissolution of the County of Carleton (“the County”), the creation of the Regional Municipality of Ottawa-Carleton (“the Regional Municipality”) and the statutory vesting of all assets and liabilities of the County in the Regional Municipality, the Municipal Board has jurisdiction to proceed to establish the interest of the Appellant Township Corporations (the “Appellants”) in the assets of the County with the view of determining the compensation, if any, payable to the Appellants by the Regional Municipality through an adjustment of assets and liabilities or otherwise.

Under The Municipal Act, R.S.O. 1970, c. 284, the inhabitants of each one of the Appellants were, at all relevant times, constituted as a body corporate, a corporation of township, for certain well defined objects.

Prior to The Regional Municipality of Ottawa-Carleton Act, 1968 (“the Ottawa-Carleton Act”) (1968 (Ont.), c. 115; now found in R.S.O. 1970, c.

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407. For convenience reference will be had to the numbering found in the Revised Statutes), the same inhabitants together with those of other areas were also constituted as a distinct body corporate, known as a corporation of county, for other well defined but different objects. The Appellants were not members of the County and they had no legal responsibility to their respective inhabitants for the management of the affairs of the County; the County had its own assets and liabilities over which the Appellants had no control and in which they had no interest either legal or equitable.

By the Ottawa-Carleton Act, the inhabitants of the Appellants were constituted into another body corporate, the Regional Municipality, and the County was dissolved; by s. 135 of the same Act, the assets and liabilities of the county were declared to be the assets and liabilities of the Regional Municipality. This statutory vesting was recognized by the Divisional Court and that part of their order is not in dispute before us.

It is beyond question that s. 135 of the Ottawa-Carleton Act did not create in favour of the Appellants an interest in the assets and liabilities that belonged to the County. It would therefore normally follow in the absence of any other applicable legislative provision that the Municipal Board should be held to be without jurisdiction to determine the compensation due as the result of the taking of an interest that has in law no existence.

But it is argued that the Appellants must somehow be deemed to have had an interest in the assets and liabilities of the County for which they are entitled to be compensated because of the authority given to the Municipal Board by s. 137 of the Ottawa-Carleton Act which reads in part as follows:

137(1) Except as provided in this Act, the Municipal Board upon the application of any area municipality, the Regional Corporation or the United Counties may exercise any of the powers under clauses a, b and d of subsection 11 of section 14 of The Muncipal Act in relation to the dissolution of the County of Carleton and the removal of the Township of Cumberland from the County of Russell and the United Counties and the

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dissolution of local boards of health and suburban roads commissions under this Act.

The relevant part of s. 14 of The Municipal Act is as follows:

14(11) The Municipal Board may, by any order made pursuant to an application under this section or by subsequent order or orders,

(a) make all such adjustments of assets and liabilities as between the municipalities, including counties, affected by any such order as may be agreed upon or, in default of agreement, as the Board may consider equitable;

The combined effect of these two statutory provisions is to give the Municipal Board the power to adjust assets and liabilities as between the municipalities affected by “the dissolution of the County of Carleton”. This power of adjustment nesessarily implies that the municipalities between which the adjustment is to take place have an interest in the assets and liabilities which are to be adjusted; I fail to see how an adjustment can be made in favour of a municipality that has contributed nothing to the newly created Regional Municipality and whose assets and liabilities are not affected by “the dissolution of the County of Carleton”. Furthermore, the statutory vesting of all the assets and liabilities of the County into the Regional Municipality and the dissolution of the County necessarily excludes the possibility of making any adjustment; if all the assets and liabilities of the County of Carleton are to belong to the new Corporation it becomes a virtual impossibility to make any adjustment because there remains nothing to adjust. The statutory vesting in favour of the Regional Municipality may possibly have some adverse effects on the inhabitants of the Appellants but the Appellants do not for such purposes represent their own inhabitants and they are not empowered, in the circumstances of this case, to act in any representative capacity.

In brief, the very wording of s. 14(11) of The Municipal Act and s. 137 of the Ottawa-Carleton Act indicates that the assets and liabilities to be adjusted are those of the municipalities that are affected by the dissolution of the County of Carle-

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ton; such dissolution had no effect on the Appellants; there can therefore be no adjustment.

But it is argued that the words “in relation to the dissolution of the County of Carleton” in s. 137 of the Ottawa-Carleton Act are to be given some meaning because of the rule of construction that effect must be given to all the words of a statute. I do not find this argument to be persuasive. Firstly, this rule is not absolute; it is one of the many guides that are to be used whenever it is necessary to ascertain the meaning of a statute by reference to the true intent of the legislature.

Secondly, it would be somewhat extraordinary if a municipality that is in no way affected by the dissolution of the County were to have the right to claim compensation for a non-existing interest in the assets and liabilities of the County. The legislature may undoubtedly by appropriate words achieve such a result but I cannot bring myself to the view that the words of s. 137 are sufficiently clear to lead one to the inescapable conclusion that it was intended that the Appellants should be compensated for an interest that did not exist.

I prefer to believe that the words “in relation to the dissolution of the County of Carleton” might possibly have been inserted in s. 137(1) of the Ottawa-Carleton Act ex abundanti cautela or maybe under some misapprehension as to the state of the law.

In Davies Jenkins & Co. Ltd. v. Davies[11], Lord Morris of Borth-y-Gest said at p. 922:

It is well accepted that the belief and assumption of those who frame Acts of Parliament cannot make the law.

Previously, in Inland Revenue Commissioners v. Dowdall, O’Mahoney & Co. Ltd.[12], Lord Reid had said at p. 417:

There is a difference between Parliament exhibiting an erroneous opinion as to the existing law and enacting that that law shall be changed.

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In Garbutt v. Durham Joint Committee[13], Lord Loreburn, L.C., spoke thus at p. 294:

Only one section, namely, s. 4, sub-s. 5, can be said to be unfavourable to this view. That particular subsection does seem to have been drawn in the thought that the service must be continuous service. But I think it is a superfluous section inserted ex abundanti cautela, and the natural meaning of the language used at the commencement of the Act ought not to be affected by the presence of a clause like that.

See also Hollyhomes v. Hind.[14]

In Cramas Properties Ltd. v. Connaught Fur Trimmings Ltd.[15], Lord Reid had this to say at p. 899:

It is true that on my interpretation of this provision this change of language can only be explained as a mistake on the part of the draftsman in failing to revise his draft so as to bring the language into line... Fortunately draftsmen do not often make mistakes but I cannot suppose that every draftsman is entirely free from that ordinary human failing. I find it very much easier to infer such a mistake than to suppose that the draftsman deliberately sought to introduce a novel and irrational rule by means which no draftsman worthy of the name would adopt. The canons of construction are not so rigid as to prevent a realistic solution. So I am of the opinion that this appeal must be allowed.

In the course of the argument before us, reference was made to a number of statutes dealing with regional municipal reorganization in other parts of the Province which were adopted by the legislature subsequently to the Ottawa-Carleton Act. The language used by the legislature in these subsequent statutes cannot be of any assistance as regards the meaning of the Ottawa-Carleton Act. It is normally the function of the courts to interpret statutes and it should not be assumed in the absence of a clear expression of opinion to the contrary that the legislature intended to usurp that function.

I agree with the following passage from the reasons of Pigeon J. speaking for a majority of this Court in Gravel v. City of St. Leonard[16] at p. 667:

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When an act is not applicable because it is subsequent to the facts which gave rise to the action, nothing is to be made of it: M.F.F. Equities v. The Queen ([1969] S.C.R. 595), at pp. 598-599. Legislative history may be used to interpret a statute because prior enactments may throw some light on the intention of the legislature in repealing, amending, replacing or adding to it. It is even possible, seeing that the Quebec Interpretation Act does not prohibit it, to consider judgments rendered before the adoption of a statute, when there is reason to believe that the legislator himself took them into consideration (see Notre-Dame Hospital v. Patry, [1975] 2 S.C.R. 388, at p. 394). The situation is completely different with respect to a statute subsequent in time to the facts which gave rise to the action. The construction of prior legislation is then exclusively a matter for the courts. In refraining from giving the new enactment retroactive or declaratory effect, the legislator avoids expressing an opinion on the previous state of the law, leaving it to the courts.

Furthermore, the factual situations dealt with in the other subsequent statutes to which we were referred were quite different from that in the case at bar.

I am therefore of the opinion that the appeal should be dismissed with costs.

Appeal allowed, PRATTE J: dissenting.

Solicitors for the appellants: Bell, Baker, Thompson, Oyen & Webber, Ottawa.

Solicitor for the Regional Municipality of Ottawa-Carleton: J.D. Cameron, Ottawa.

Solicitor for the City of Ottawa: D.V. Hambling, Ottawa.

Solicitors for the Township of Cumberland: Houlahan & Baldwin, Ottawa.