Landreville v. Town of Boucherville, [1978] 2 SCR 801

Supreme Court of Canada

Landreville v. Town of Boucherville, [1978] 2 S.C.R. 801

Date: 1978-02-07

Lucien Landreville (Expropriated party) Appellant;

and

Town of Boucherville (Expropriating party) Respondent.

1977: June 9; 1978: February 7.

Present: Martland, Ritchie, Pigeon, Beetz and de Grandpré JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR QUEBEC

Expropriation—Contestation of the right to expropriate—Bad faith of the expropriating party—Burden of proof—Code of Civil Procedure, art. 777.

Municipal law—Validity of a by-law disputed by incidental arguments—Statutory right of a municipality to expropriate—Cities and Towns Act, R.S.Q. 1964, c. 193, ss. 411, 605.

Appellant is contesting the right to expropriate of respondent (the “Town”), which passed a by-law ordering the expropriation of his land for purposes of a municipal park and offering him an indemnity of one dollar. The land is a shale quarry covering forty arpents located approximately three miles from the centre of the Town of Boucherville. On December 7, 1965, the Town issued a permit for appellant to work this quarry but made it subject to a number of conditions, inter alia that the Town could take 10,000 tons of stone free of charge and that appellant would transfer the part of his lot that was used as a quarry to the Town for $1. The Town did in fact take the specified quantity of stone free of charge, but appellant refused to transfer his quarry. On March 1, 1966 the municipal council passed a resolution requiring appellant to sign the contract transferring the quarry to the Town. At the same time counsel for the Town were authorized to take the necessary measures to stop the quarrying of stone until appellant had signed the contract. On April 19, 1966 the municipal council adopted a by-law ordering that part of lot 167, namely appellant’s land, be homologated for purposes of a park. On August 9, 1966 the municipal council passed a resolution ordering “that appropriate legal proceedings be taken regarding the operation of a quarry [belonging to appellant] … and that if existing by-laws are insufficient for this purpose, a recommendation be made to this Council without delay”. Finally, on December 6, 1966 the contested expropriation by-law was passed. The Superior Court judge concluded that the Town had expropriated appellant not for the reason put forward but solely to prevent him from operating his quarry, and

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had thus acted in bad faith and abused its power: he found in favour of appellant and quashed the by-law. The Court of Appeal reversed the judgment on the ground that the expropriated party, on whom the burden of proof rested, had failed to establish fraud and flagrant injustice. Hence the appeal to this Court.

Held: The appeal should be allowed.

The trial judge made no error of law and drew no incorrect conclusions from the facts when he decided that the resolutions passed by the Town, and the content of these resolutions, showed clearly that the Town’s bad; faith was such as to be the equivalent of a fraud upon the party concerned. It may be added that while the resolutions and by-laws passed by the municipal council clearly condemn the Town, this condemnation is confirmed by the other circumstances. There is no legislation permitting the Town to make the issuing of a permit to operate the quarry conditional upon appellant’s transferring his land to the Town. Since the wrongful and unjust conduct of the Town with regard to appellant prior to the adoption of the expropriation by-law had been proved, it was up to the Town to prove a subsequent change, which it did not do. On the contrary, in its efforts to acquire appellant’s property for $1, the Town continued to act in bad faith since its valuation was clearly unfair and disregarded a recognized legal principle that the indemnity must be calculated on the basis of the value to the owner, not the value to the expropriating party. Appellant did not have to demonstrate that the Town did not intend to use the quarry as a park. Once the initial bad faith was proved, it vitiated and nullified the Town’s actions regardless of the intentions that the Town may eventually have formed in order to attain its objectives. We are dealing with a cause of nullity that transcends the others and vitiates whatever it produces.

The argument that a municipal by-law can be nullified only by a petition to quash, as provided by s. 411 of the Cities and Towns Act, cannot be allowed. Section 411 creates an additional but not an exclusive remedy. It is also possible to dispute the validity of a municipal by-law on defence or by incidental arguments, such as the contestation of the right to expropriate in the case at bar. Finally, the Town’s statutory right to expropriate under s. 605 of the Cities and Towns Act is not an absolute right. It may be contested, as in the case at bar, if the expropriating party commits abuses that vitiate the substance of its decisions.

Kuchma v. Rural Municipality of Taché, [1945] S.C.R. 234; Lazarus Estates Ltd. v. Beasley, [1956] 1

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Q.B. 702; Marquess of Clanricarde v. Congested Districts Board of Ireland (1915), 79 J.P. 481 (H. of L.); Duquet v. The Town of Sainte-Agathe-des-Monts, [1977] 2 S.C.R. 1132, applied; City of Sillery v. Sun Oil Co. and Royal Trust Co., [1964] S.C.R. 552; Cedar Rapids Manufacturing and Power Company v. Lacoste, [1914] A.C. 569; Fraser v. Fraserville, [1917] A.C. 187; The City of Montreal v. McAnulty Realty Co., [1923] S.C.R. 273; Attorney General of Quebec v. Hébert, [1967] S.C.R. 690; Place Versailles Inc. et al. v. Minister of Justice of Quebec, [1977] 2 S.C.R. 1118, referred to; Hamel v. Town of Asbestos, [1967] S.C.R. 534, distinguished.

APPEAL from a decision of the Court of Appeal of Quebec reversing a judgment of the Superior Court. Appeal allowed.

Viateur Bergeron, Q.C., and Richard Gaudreau, for the appellant.

Yvon Denault, for the respondent.

The judgment of the Court was delivered by

BEETZ J.—The issue is whether respondent committed an abuse of power in expropriating appellant’s land. The case also raises both procedural and jurisdictional questions.

By-law No. 533 ordering expropriation of this land for purposes of a municipal park was adopted on December 6, 1966 by resolution No. 66-906 of the municipal council of the Town of Boucherville. The notice of expropriation estimated the value of the expropriated immovable (part of lot 167) at one dollar; this was the amount of the indemnity offered to the expropriated party by the expropriating party.

Lucien Landreville contested “the right to expropriate” under art. 777 C.C.P., pleading inter alia that:

[TRANSLATION] Under the pretext of exercising a statutory right specifically granted to cities and towns under ss. 605 et seq. of the Cities and Towns Act, namely the right to expropriate for municipal purposes, the expropriating municipality in its notice of expropriation falsely and unlawfully alleged its desire to acquire the property of the expropriated party for purposes of a municipal park, when in fact it wished to acquire the said property not for municipal purposes but solely with the objective of putting an end to the operation of a

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quarry located on it, more specifically, a shale borrow pit…

Lucien Landreville also pleaded that the Town:

[TRANSLATION] falsely and in bad faith alleged the necessity of developing the said lot P-167 for purposes of a municipal park …

He further pleaded that:

[TRANSLATION] the expropriating municipality attempted unlawfully and in bad faith to camouflage its true intention, which is to put an end to the operation being carried out on lot P-167…

The Superior Court (Nolan J.) held that the expropriation was motivated by a reason other than the reason put forward: the sole aim of the Town was to prevent Lucien Landreville from operating his quarry. The Town had therefore acted in bad faith, treated Landreville unfairly and abused its power. Consequently, the trial judge found in favour of appellant, dismissed the notice of expropriation and quashed the resolution and the by-law ordering the expropriation.

The Court of Appeal (Tremblay C.J.A. and Casey and Turgeon JJ.A.) reversed the judgment of the Superior Court and dismissed Lucien Landreville’s contestation. Turgeon J.A., with whom Tremblay C.J.A. concurred, held that:

[TRANSLATION] the expropriated respondent, on whom the burden of proof rested, failed to establish the fraud and flagrant injustice alleged in his defence. The evidence of the engineer Gilles Chabot and the town planner Victor Lambert convinced me of this.

The Chief Justice and Turgeon J.A. took for granted, without deciding the point, that in its contestation the expropriated party could argue the nullity of the by-law ordering the expropriation. Casey J.A. paid more attention to this latter question, which does not appear to have been raised in Superior Court, but he agreed with the opinion of his colleagues on the main issue:

The motivation of the Councillors or the suspicion that they do not intend to proceed with the work requires proof far stronger than that contained in this record.

The appeal, filed under the old s. 36 of the Supreme Court Act, asks this Court to set aside the decision of the Court of Appeal and restore the

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judgment of the Superior Court. (Affidavits attesting that the value of the matter in controversy exceeds ten thousand dollars were filed by appellant. The jurisdiction of this Court was not questioned.)

The evidence consisted mainly of resolutions and by-laws adopted by the Town. The remainder of the evidence included the testimony of Lucien Landreville, Victor Lambert, town planner and witness for Lucien Landreville, Gilles Chabot, engineer and witness for the Town, and Eugène McClish, Town clerk.

The facts are not disputed but the Court of Appeal and the Superior Court did not draw the same conclusions from them.

The land that the Town wished to expropriate is a shale quarry covering forty arpents (1,472,027 sq. ft.) located in an open field approximately three miles from the centre of the Town of Boucherville in the Parish of Sainte-Famille de Boucherville, which was annexed by the Town in 1963. At the time the expropriation was ordered the quarry was approximately twenty-five feet deep and covered forty per cent of the farm belonging to Lucien Landreville. Exploitation began in December 1965 when the owner transferred to contractors the right of quarrying the shale, at first for a one-year period and later for a ten-year period.

Believing he needed a permit, Lucien Landreville sent a written request to the municipal authorities on December 7, 1965, after he had transferred quarrying rights to the first contractor. At first, the Mayor, whom he went to see, told him that the matter was “as good as money in the bank”. Later, however, at the Town Hall, the Town’s engineer, Gilles Chabot, and the Mayor told him that the Town could not agree to issue him a permit unless he transferred the land to the Town once the quarrying was over. In the application for a permit, dated December 7, 1965, which was dictated to him, Lucien Landreville wrote “that in consideration of this application” he “would undertake” to transfer this part of his lot to the Town “for the sum of $1 plus other consideration and an access to the said land”. (The offer was withdrawn on April 11, 1968.)

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Pursuant to this application, a resolution of the municipal council dated December 16, 1965 authorized Lucien Landreville to lease part of his lot to Mégantic Construction Inc. for quarrying of the stone, but with a number of conditions, including the following: the excavation was limited to a depth of twenty feet; all excavation or quarrying of stone was to end on May 1, 1967; the earth removed was to be deposited at a place to be specified by the Town and to remain its property; the Town could take 10,000 tons of stone free of charge; Lucien Landreville was to transfer to the Town for $1, by means of a notarized contract, the part of his lot that was used as a quarry; a notary was chosen to prepare the contract, which the Mayor and the Secretary-Treasurer were empowered to sign.

The 10,000 tons of stone, valued at $0.85 a ton, were in fact used for municipal purposes free of charge, but Lucien Landreville did not agree to transfer his quarry to the Town.

On March 1, 1966 the municipal council passed a resolution refusing to grant Paul-Emile Lamontagne and Lucien Landreville permission to use lot 167 as a dump. The same resolution required Lucien Landreville to sign the contract transferring the quarry to the Town. Counsel for the Town were authorized to take the necessary measures to stop the quarrying of stone until Lucien Landreville had signed the contract. If he refused, they were to see that the quarrying was halted indefinitely and sue him for damages.

On March 15, 1966 a proposal was made to the municipal council that a land surveyor [TRANSLATION] “be authorized to prepare plans for the piece of land to be homologated on lot 167 belonging to Mr. Lucien Landreville”. (The copy in the record does not mention, however, whether this proposal was adopted.)

On April 19, 1966 the municipal council adopted a by-law ordering that part of lot 167 be homologated for purposes of a park. (The record does not show whether the homologation was actually carried out.)

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On August 9, 1966 the municipal council resolved [TRANSLATION] “that appropriate legal proceedings be taken regarding the operation of a quarry known as a borrow pit within our boundaries, namely on lot No. 167 of the official cadastre of the Parish of Ste-Famille, and that if existing by-laws are insufficient for this purpose, a recommendation be made to this Council without delay”.

On December 6, 1966 the council adopted the [TRANSLATION] “by-law to provide for the acquisition by mutual consent or by expropriation of part of lot No. 167 of the official cadastre of the Parish of Ste-Famille de Boucherville, registration division of Chambly, for the sum of $1 for purposes of a municipal Park”. Counsel for the Town were authorized to take the necessary measures to acquire the land by mutual consent or expropriation with prior taking of possession.

On January 17, 1967, the municipal council adopted construction and zoning by-laws Nos. 545 and 546, covering the entire area of the Town of Boucherville. According to these by-laws and the accompanying plan (D-5), Lucien Landreville’s quarry is in a residential development zone. In the middle of this zone quite a large area is zoned as a park (P-48). This is a proposed regional park outlined on the plan by curved or elliptical lines, with the exception of a single rectangular projection. This rectangle represents Lucien Landreville’s quarry, which the municipality said it wanted to add to the proposed park.

The notice of expropriation is dated February 21, 1967.

The following are the trial judge’s reasons for his conclusions:

If this expropriation were being contested solely on the grounds that the City was wrong or unwise in deciding to add Petitioner’s property to the park zone P-48 because of the alleged incongruity of adding to the said park zone 40 arpents of land used as a quarry, the whole superficies of which consists of a hole some 25 feet deep, the undersigned would have no hesitation in dismissing the Contestation as it is not the function of the Court to substitute its views for those of the municipal council.

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For the same reason, the Court is of the opinion that the fact that the park P-48 may not be built for fifteen years or more (as was proven) should not be considered per se as a valid ground for invalidating the City’s by-law decreeing the expropriation. Nor is it its function to pass judgment on the valuation of $1.00 placed on the Contestant’s land in the certificate accompanying the Notice of Expropriation even though the municipal valuation for tax purposes was proven to be $100.00 per arpent.

The Court’s decision has been reached on the evidence as a whole. Considered by themselves the complaints of Petitioner on the three points mentioned above are irrelevant. But considered together with the other actions of Petitioner they help to confirm Contestant’s contention that Petitioner acted unjustly towards him in this matter.

The undersigned is satisfied from the proof which was adduced in this case that Petitioner had an ulterior motive in decreeing the expropriation of Contestant’s land and that this motive was its determination to stop Contestant from exploiting his quarry.

The resolutions which were passed, and the contents of these resolutions, show clearly that Petitioner was determined to prevent Contestant from operating a quarry on his land unless he first deeded the land over to the City; and that when all other threats and maneuvers failed it was decided to foil Contestant by expropriating his land. In fact, Petitioner was so anxious to teach Contestant a lesson that the by-law decreeing the expropriation of Contestant’s land was passed more than a month before Petitioner’s land was added to the park zone P-48 by the Plan D-5.

In the opinion of the undersigned, Petitioner’s bad faith is further evidenced by the fact that when this case was heard in March 1970, more than three years after Petitioner passed the by-law decreeing the expropriation of Contestant’s land, Petitioner had taken no steps to expropriate any of the other lots forming part of the park zone P-48 except for one single lot on which a road was built as part of the network of roads in the Petitioner municipality and which the undersigned seriously doubts was in any way, other than accidentally, related to park zone P-48.

The principle has been clearly laid down in many cases dealing with decisions reached by municipal corporations that the Courts must not interfere unless fraud is established or a violation of the law or an abuse of power, in either case so violent as to be the equivalent of a fraud upon the public or the parties concerned.

Corporation de la Ville de Dorval v. Sanguinet Automobile Ltée, [1960] Que. K.B. 706, Roy v. Corporation

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d’Aubert-Gallion, [1929] 46 Que. K.B. 15—Rivard, J. at pp. 29-30, Sula vs Cité de Duvernay, [1970] Que. K.B. 234.

The undersigned believes this to be a case which falls within the principles laid down in the above cases.

The undersigned therefore has no hesitation in finding that in passing By-law No. 533 on December 6, 1966 decreeing the expropriation of Contestant’s property, Petitioner committed an abuse of power, a flagrant injustice equivalent to bad faith towards Contestant.

I find no error of law in the reasons of the trial judge and I cannot say that the conclusions he draws from the facts are manifestly incorrect.

I would, however, add the following reasons to those of the trial judge.

The burden of proof is a heavy one when it involves establishing the commission of an “abuse of power equivalent to fraud” and “resulting in a flagrant injustice”: City of Sillery v. Sun Oil Co. and Royal Trust Co.[1], at p. 557.

In the case at bar, however, the municipal council is clearly condemned by its own resolutions and by-laws, and this condemnation is confirmed by the other circumstances.

In the resolution of December 16, 1965, far from opposing the operation of a quarry on Lucien Landreville’s farm because of existing or expected zoning or a proposed park, the municipal council indicated that it was prepared to allow this operation on the conditions mentioned above: that the earth removed, 10,000 tons of stone and above all the land itself be given to the Town. From the very beginning, therefore, the Town was trying to appropriate the quarry without paying for it.

There is explicit legislation enabling municipalities to require, as a condition precedent to the approval of a subdivision plan, that the owner convey to them free of charge a specified percentage of his land, to be used for parks or playgrounds; or to appropriate without indemnity in specific cases land to be used for streets or lanes or the land necessary for the first public road on a lot. For example, s. 429 of the Cities and Towns Act,

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R.S.Q. 1964, c. 193, as amended by L.Q. 1975, c. 66, s. 15—a provision subsequent to the facts at issue—states that the municipal council may make by-laws:

(8) To require, as a condition precedent to the approval of a subdivision plan, whether it provides for streets or not, that the owner convey to the municipal corporation, for park or playground purposes, an area of land not exceeding ten per cent of the land comprised in the plan and situated at a place which, in the opinion of the council, is suitable for the establishment of parks or playgrounds; or to exact from the owner, instead of such area of land, the payment of a sum not exceeding ten per cent of the real value of the land comprised in the plan, notwithstanding the application of section 21 of the Real Estate Assessment Act (1971, chapter 50) …

See also art. 392f(g) of the Municipal Code, ss. 610a, 610b, 610c and 1054 of the Charter of the City of Montreal, S.Q. 1959-60, c. 102, S.Q. 1960-61, c. 97, s. 30, S.Q. 1963, c. 70, s. 21, L.Q. 1969, c. 91, s. 6; s. 336(204) of the Charter of the City of Quebec, L.Q. 1976, c. 54, s. 15. Municipalities may not, however, extend this legislation by using permit-granting powers that they have or think they have to extort from an owner advantages such as those that the Town attempted to obtain from Lucien Landreville on December 16, 1965: such action by a municipality demonstrates bad faith and constitutes an abuse of power.

The Town repeated its conduct five and a half months later with its resolution of March 1, 1966. I am not thinking of its refusal to authorize use of lot 167 as a dump but of the notice to transfer title that was sent to Lucien Landreville with a threat of legal proceedings and prevention of further quarrying. The Town still had no objection in principle, however, to the operation of a quarry on this site provided that Lucien Landreville agreed to relinquish his property; and there was no mention of a park.

The threats became more specific with the resolution or proposal of March 15, 1966 authorizing a surveyor to make plans for homologation which necessarily suggests expropriation. There was still no mention of a park.

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The park was mentioned for the first time in the resolution of April 19, 1966, ordering the homologation for purposes of a park of a site that, a month and a half earlier, the Town had been willing in principle to have used as a quarry.

Moreover, the resolution of August 9, 1966 must be interpreted in the light of the resolutions that preceded and followed it: the municipal council was in fact asking for suggestions of how it could attain the objectives that it had been pursuing unlawfully from the beginning.

Finally, there is by-law No. 533, dated December 6, 1966, ordering the expropriation of Lucien Landreville’s quarry for purposes of a park. It is this by-law that must be considered, but not in isolation from the events that preceded and culminated in it. If implemented to the letter, this by-law would secure for the Town in substance the very thing it had been wrongfully seeking to obtain by its resolutions of December 16, 1965 and March 1, 1966, namely ownership of Lucien Landreville’s land for the sum of $1. What begins and continues in abuse and bad faith remains vitiated to the end, unless there is evidence of a change in circumstances and attitudes that indicates the supervening of good faith. The resolutions leading up to the by-law of December 6, 1966 establish the initially wrongful and unjust conduct of the Town with regard to Lucien Landreville’s property. From that moment on, in my view, it was up to the Town to prove a subsequent change. It did not do so.

The Court of Appeal relied on the testimony of Victor Lambert and Gilles Chabot, to which the trial judge did not refer specifically.

Victor Lambert is a town planner and witness for Lucien Landreville. The part of his testimony most favourable to the Town is the part in which he approves the creation of park zone P-48 by means of a by-law dated January 17, 1967. He also says, however, that he found the addition of the rectangular area representing Lucien Landreville’s quarry to be incongruous, and that he could not understand what priorities would lead the Town to acquire this land for a park ten or fifteen

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years before it was needed for this purpose. Taken as a whole, this testimony does not appear to me to strengthen the Town’s position.

Gilles Chabot is the Town’s engineer. He stated that the Town’s planning board had been studying the construction and zoning by-law adopted on January 17, 1967 since 1962. Though he did not actually say so, he implied that the municipal council may have had this by-law in mind before its adoption. In his view, the Town was faced with a “fait accompli” in the form of the excavation of Lucien Landreville’s quarry; it was better to fill in the excavation completely or partially and add it to what would later become a large regional park than to let it remain in an area that had just been designated residential. As for the nominal value of $1 offered to Lucien Landreville for his land, he explained that this was due to the fact that the Town’s costs for filling in the excavation would be much greater than the value of the land.

This is the same Gilles Chabot, however, who, along with the Mayor, told Lucien Landreville in December 1965 that the Town would agree to let him operate his quarry provided that he transferred the ownership of it after the excavation was completed. How can this witness later speak of a “fait accompli” when he contributed to bringing it about? If the operation of a quarry on this site was not desirable in view of a proposed zoning by-law then under study, why, in so far as it believed it could do otherwise, did the Town allow the operation and even become involved in it?

The explanation of the nominal value of $1 offered to Lucien Landreville for his land is taken up again by the Town in its factum submitted to this Court. This explanation is unexpected, to say the least: the Town takes 10,000 tons of stone free of charge, thereby helping to transform the expropriated property into a hole, which the expropriated party is then charged for filling in by having the cost of this filling deducted from the expropriation indemnity. From the Town’s point of view this hole was indeed a treasure-trove. In my view, the offer of $1 and the explanation seeking to justify it are

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based on a valuation that is clearly unfair, since it disregards the long-recognized legal principle that the indemnity must be calculated on the basis of the value to the owner, not the value to the expropriating party: Cedar Rapids Manufacturing and Power Company v. Lacoste[2]; Fraser v. Fraserville[3]; The City of Montreal v. McAnulty Realty Co.[4] at pp. 278, 281, 282, 290, 297; Attorney General of Quebec v. Hébert[5], at p. 695; Place Versailles Inc. et al. v. Minister of Justice of Quebec[6], at pp. 1128, 1129. The Town’s bad faith is therefore clear from the actual by-law ordering the expropriation, and not only from the preceding resolutions.

In addition, if Lucien Landreville had not contested the right to expropriate, the deposit of this one dollar, representing an indemnity calculated on the basis of a false principle, would have allowed the Town to obtain prior possession until such time as the Public Service Board determined the true value of a piece of land which, for municipal tax purposes, had already been assessed at $4,000. Furthermore, for the only other expropriation carried out within zone P-48, which took place in 1970 and involved a road, the Town borrowed $1,600 and did not require prior possession in its by-law.

Under these circumstances, it is not surprising that the trial judge, who saw and heard the witnesses and says that he based his conclusions on the evidence as a whole, did not find it necessary to refer specifically to the oral evidence.

In the Court of Appeal, Casey J.A. expressed the opinion that in order to succeed Lucien Landreville would have had to prove that the Town did not intend to use the quarry as a park. The key allegation in Lucien Landreville’s case, however, is the bad faith of the Town. If bad faith is proved, as I believe it was, it vitiates and nullifies the Town’s actions regardless of the intentions that the

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Town may eventually have formed in order to attain its objectives.

The appellant here contends that the “by-law is not in the public interest” and further, that the council acted “in bad faith and through fraud and partiality”. The authorities are clear that the onus of proving these allegations rests upon the applicant. They are equally clear that if the applicant succeeds in proving these allegations, the by-law is invalid.

Estey J., speaking for the majority of this Court in Kuchma v. Rural Municipality of Taché[7], at p. 239.

Fraud, dishonesty, bad faith, extortion and bribery form a special category of causes of nullity, which transends all others.

Fraud unravels everything. The Court is careful not to find fraud unless it is distinctly pleaded and proved; but once it is proved, it vitiates judgments, contracts and all transactions whatsoever…

Lord Denning in Lazarus Estates Ltd. v. Beasley[8], at p. 712.

This was also the opinion of Lord Loreburn in Marquess of Clanricarde v. Congested Districts Board of Ireland[9]:

There is only one point in the case, a short point, whether the Congested Districts Board could be restrained from using its compulsory power to acquire Lord Clanricarde’s lands in county Galway. In form their proceedings were regular, but in substance, so the appellant contended, they were proceeding ultra vires. At first there was another contention that they were not proceeding bona fide, and it was explained that this conveyed no sort of reflection upon their honesty or good faith, but merely that there was some by-motive. I think it would be better to select some happier expression. I do not understand an honest dishonesty. … fraud or dishonesty stands on a different footing. A court will always defeat that under any shape, and quite regardless of all form.

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This brings me to the questions of procedure and jurisdiction.

The question of procedure was raised in the Court of Appeal by Casey J.A., who found merit in the argument that a municipal by-law could be nullified only by a petition to quash on the ground of illegality, a direct remedy provided for in s. 411 of the Cities and Towns Act, and not by incidental arguments or on defence, as in the case at bar, where Lucien Landreville is disputing the validity of the by-law ordering the expropriation by contesting the notice of expropriation.

Section 411 of the Cities and Towns Act creates an additional but not an exclusive remedy; it cannot have the effect of depriving a person of other remedies that would normally be available to him. In my view, it is also possible to dispute the validity of a municipal by-law on defence or by incidental arguments. This is the meaning of the rather long-standing line of authority for which this Court demonstrated its preference in Duquet v. The Town of Ste‑Agathe-des-Monts[10].

The Superior Court could not dispose of Lucien Landreville’s contestation without ruling on the validity of the resolution and the by-law ordering the expropriation. Having concluded that they were invalid, should the Court have limited itself in the order it made to dismissing the notice of expropriation, without explicitly quashing the resolution and the by-law as requested by the expropriated party? I think not. This would be nothing but formalism, since the resolution and by-law have no purpose other than the expropriation in question. In my view, Lucien Landreville could ask in defence that the resolution and the by-law ordering the expropriation be quashed.

Article 777 C.C.P. provides that:

the party being expropriated can only contest the right to expropriate.

Article 1066e of the old Code of Civil Procedure provided that:

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No party being expropriated may file any plea against the notice save to contest the right of the expropriating party to have recourse to expropriation.

In Hamel v. Town of Asbestos[11], this Court, which was called upon to apply art. 1066e, held (at p. 538):

[TRANSLATION] in opposition to the notice, the expropriated party may argue that the expropriating party does not have the statutory right to resort to expropriation, but not that there were irregularities or illegalities in the procedure followed in exercising this right.

In the case at bar, however, the Town contends that the statutory right of the municipal council to expropriate for purposes of a park cannot be questioned in view of s. 605(c) of the Cities and Towns Act, which enables it to:

expropriate any immoveable property, any part thereof or any servitude it may need for any municipal purpose.

Since the Town’s statutory right to expropriate is indisputable, Lucien Landreville’s defence would appear to contravene art. 777 C.C.P.

This submission by the Town goes beyond procedure and gets into jurisdiction. It cannot be retained, however, since it would enable a town to thwart any efforts to contest its expropriations by wording them in such a way as to give them an appearance of legality.

In Hamel (supra), appellant alleged that the municipality had committed procedural irregularities, and in particular that the by-law ordering the expropriation had been adopted by an illegally convened and improperly held meeting. He did not, however, contest the municipality’s right to expropriate his immovable. He did not deny that in his case the expropriating party was entitled to resort to expropriation.

In the case at bar, although in general Lucien Landreville recognized the Town’s authority to expropriate immovables, including hiw own, for municipal purposes, he contested its right to exercise this authority as it had done in the circumstances, by committing not procedural irregularities but abuses that vitiated the substance of its

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decision. In so doing and in so far as he is concerned, Lucien Landreville is in my view contesting “the right to expropriate” in the sense in which this phrase from art. 777 C.C.P. must be understood.

The appeal should be allowed, the decision of the Court of Appeal set aside and the judgment of the Superior Court restored, with costs in this Court as in the Court of Appeal.

Appeal allowed with costs.

Solicitors for the appellant: Bergeron & Gaudreau, Hull, Quebec.

Solicitors for the respondent: Viau, Bélanger, Hébert, Mailloux, Paquet, Pinard & Denault, Montreal.