Ilgwu Centre Inc. v. La Régie de la Place des Arts, [1977] 1 SCR 91

Supreme Court of Canada

Ilgwu Centre Inc. v. La Régie de la Place des Arts, [1977] 1 S.C.R. 91

Date: 1975-04-22

Ilgwu Centre Inc. Appellant;

and

La Régie de la Place des Arts, successor to Le Centre Sir Georges-Étienne Cartier Respondent.

1975: March 18; 1975: April 22.

Present: Laskin C.J. and Martland, Judson, Spence, Pigeon, Dickson, Beetz and de Grandpré JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR QUEBEC AND FROM THE SUPERIOR COURT OF THE DISTRICT OF MONTREAL

Expropriation—Appeal—Compensation for loss of tax exemption fixed—Homologation order by Superior Court—Final nature of the decision of the Public Service Board—Appeal as of right not allowed—No appeal from the Superior Court judgment—Leave to appeal on quantum of compensation may not be granted—Montreal City Charter, 1959-60 (Que.), c. 102, amended by 1962 (Que.), c. 59, art. 978, 984—Quebec Code of Civil Procedure (1959), art. 1066a, (1965) art. 773—Supreme Court Act, R.S.C. 1970, c. S-19, amended by 1974-75, c. 18, ss. 36, 41.

This Court has previously recognized that appellant was entitled to be compensated for the loss of an indefinite tax exemption which it had enjoyed in respect of its expropriated property, held that this tax exemption did not apply in respect of premises in which it relocated following the expropriation and directed that the case be returned to the Board so that it could assess the compensation payable for this loss.

Following this decision, a second report, fixing this compensation, was made by the Board and homologated by the Superior Court. An appeal was inscribed by appellant and was met by a motion to quash which succeeded, and the Court of Appeal held that there was no right of appeal from the homologation order, under art. 978 of the Montreal City Charter, which made the decision of the homologating Court final and not subject to appeal. Appellant appeals (1) from the judgment of the Court of Appeal, and (2) from the homologating judgment of the Superior Court, pursuant to s. 36 of the Supreme Court Act. It also seeks leave to appeal from the latter judgment pursuant to s. 41.

Held: The appeals and the application should be dismissed.

There was an appeal as of right to this Court from the judgment of the Court of Appeal. However, it should be

[Page 92]

dismissed. The amendments made in 1962 to the Montreal City Charter set up a new procedure. The Montreal Bureau of Expropriation was established as the tribunal to fix compensation with an appeal to the Public Service Board and with homologation of the Bureau’s report or, in the event of an appeal, of the Board’s report, by the Superior Court. In stated circumstances, an appeal may be brought to the Court of Appeal from the Superior Court’s homologation of the final decision of the Board. Section 984 of the Charter is a carry‑over provision, which did not bring in its wake a right of appeal to the Court of Appeal merely because of the repeal of the second paragraph of art. 978, which denied any appeal from a homologating order. The right of appeal given by the Code of Civil Procedure does not apply to expropriations pursuant to the Montreal City Charter.

Section 36 of the Supreme Court Act does not permit an appeal to be brought to this Court as of right from a homologation order. It speaks of an appeal from a final judgment of the highest Court of final resort in the province, and that is not the Quebec Superior Court. However, for the purpose of this application for leave, it is accepted that the Superior Court was the highest court of final resort in which judgment could be had, pursuant to s. 41(1). However, since what is put in issue on this application for leave is the quantum of compensation for the loss of the tax exemption, that is not a matter on which this Court will grant leave.

Furlan v. City of Montreal, [1947] S.C.R. 216; Clarke v. Millar and Creba, [1970] S.C.R. 584; Ace Holdings Corp. v. The Montreal Catholic School Board, [1972] S.C.R. 268; Luden v. Cité de Montréal, [1964] Qué. Q.B. 113, referred to.

APPEAL from a judgment of the Court of Appeal of Quebec, dismissing an appeal from a homologating order of the Superior Court; alternative appeal and application for leave to appeal from the judgment of the Superior Court. Appeals and application dismissed.

J.J. Spector, Q.C., and Charles Spector, for the appellant.

Pierre Pinard, for the respondent.

[Page 93]

The judgment of the Court was delivered by

THE CHIEF JUSTICE—In La ville de Montréal v. ILGWU Centre Inc. and Public Service Board and La Régie de la Place Des Arts[1], this Court concluded that ILGWU Centre Inc., whose property had been expropriated to permit construction of the Place des Arts, was entitled to be compensated for the loss of an indefinite tax exemption which it had enjoyed in respect of its expropriated property. This Court also held, reversing in this respect judgments of the Quebec Superior Court and the Court of Appeal, that the tax exemption was not ambulatory and did not apply in respect of premises in which the expropriated party relocated following the expropriation.

Compensation for loss of the tax exemption had been put in issue before the Public Service Board which had been directed by an order of the Superior Court of August 9, 1961 to fix compensation for the expropriated property. There was a considerable delay in the compensation proceedings, and it was not until February 2, 1966 that the Board reported on the compensation that it fixed. No issue arises here as to this sum. In the same report, the Board declared that it had no jurisdiction to decide on an allowance for the loss of the tax exemption but reserved to the expropriated owner all remedies that it might have in the appropriate Court. On February 25, 1966 the Board’s report was homologated by a judgment of the Superior Court.

The judgment of this Court, above referred to, which was the culmination of a declaratory action instituted by ILGWU Centre Inc. on July 22, 1966, directed that the record on the expropriation be returned to the Public Service Board so that it could assess the compensation payable for the loss of the tax exemption. The Board, in a second report dated April 17, 1973, fixed this compensation at $84,000. This report was homologated by a judgment of the Superior Court of August 8, 1973. An appeal was inscribed by the appellant herein and was met by a motion to quash which succeeded, Casey J.A. dissenting.

[Page 94]

The Quebec Court of Appeal, in quashing the appeal, held that there was no right of appeal from the homologation order of August 8, 1973, being of the opinion (save for Casey J.A.) that the applicable legislation was art. 978 of the Montreal City Charter, 1959-60 (Que.), c. 102 which made the decision of the homologating Court or Judge final and not subject to appeal. The Charter was amended by 1962 (Que.), c. 59, in force on July 6, 1962 and it was in reliance on the amendments then made (and to which I will refer later in these reasons) that Casey J.A. dissented.

ILGWU Centre Inc. brings two appeals to this Court, one an appeal from the judgment of the Quebec Court of Appeal aforementioned, and the second, in the alternative, an appeal allegedly pursuant to s. 36 of the Supreme Court Act, R.S.C. 1970, c. S-19 from the homologating judgment of the Quebec Superior Court of August 8, 1973, treating it as a judgment of the Court of highest resort in the province. In the further alternative, the appellant seeks leave to appeal from this Superior Court judgment pursuant to s. 41 of the Supreme Court Act, as amended, if an appeal does not lie as of right under s. 36.

I am of the opinion that (1) the appeal from the judgment of the Quebec Court of Appeal, quashing the appeal to it from the homologation order of August 8, 1973 for want of jurisdiction, should be dismissed; (2) there is no right of appeal to this Court under s. 36 of its constituent Act from the Superior Court’s order of homologation of August 8, 1973: See Furlan v. City of Montreal[2]; and (3) leave to appeal should be refused. My reasons for these conclusions follow.

In arriving at my first conclusion, I proceed on the basis that there was an appeal as of right to this Court from the judgment of the Quebec Court of Appeal holding that there was no appeal to it from the homologation order of August 8, 1973. I apply in this connection the judgments of this

[Page 95]

Court in Clarke v. Millar and Creba[3] and in Ace Holdings Corp. v. The Montreal Catholic School Board[4]. This being said, the appeal nonetheless fails on the merits of the issue in appeal.

The expropriation proceedings taken in respect of the appellant’s property in 1961 were admittedly taken under the provisions of the Montreal City Charter as it then stood. Those provisions made the Public Service Board the tribunal that fixed compensation, made its report subject to homologation or confirmation by the Quebec Superior Court and made that Court’s decision final and not appealable. This was expressly set out in art. 978, reading as follows:

978. On the day specified in the notice, the city shall submit such report to the Superior Court or to a judge thereof, for confirmation or homologation; the court or judge, as the case may be, upon being satisfied that the proceedings and formalities prescribed by the foregoing articles have been observed, shall confirm and homologate the report.

The decision of the court or judge shall be final as regards all interested parties and shall not be subject to appeal.

This situation in respect of expropriation under the Montreal City Charter was in contrast to the general expropriation provisions of the Quebec Code of Civil Procedure under which a right of appeal was given, but they excluded from their purview expropriations made pursuant to, inter alia, the Montreal City Charter: see Quebec Code of Civil Procedure (1959), art. 1066a.

The amendments made in 1962 to the Montreal City Charter set up what was in effect a new procedure for expropriations thereunder. The Montreal Bureau of Expropriation was established as the tribunal to fix compensation with an appeal to the Public Service Board and with homologation of the Bureau’s report or, in the event of an appeal, of the Board’s report, by the Superior Court, and

[Page 96]

with a further appeal in stated circumstances, to the Court of Appeal from the Superior Court’s homologation of the final decision of the Board. Article 995g of the amending legislation stated that the provisions for appeals “shall apply only to the proceedings in expropriation instituted before the Bureau”.

The appellant does not, and, indeed, cannot invoke the foregoing appeal provisions, but it relies on an amendment concurrently made in 1962 which struck out the second paragraph of art. 978, that is the paragraph denying any appeal from a homologating order of the Superior Court. It contended that this opened a right of appeal to the Court of Appeal, asserting further that because the first report of the Public Service Board was made in 1966 (after the 1962 amendments became effective) and, in any event, since the issue of the amount of compensation for the loss of the tax exemption came before the Public Service Board even later, being determined by its report of April 17, 1973, there was no question of retrospective operation involved in asserting a right of appeal to the Court of Appeal.

I find it unnecessary to deal with the appellant’s submissions on whether or not retroactivity is involved. The 1962 amendments replaced the then existing art. 984 (which simly confirmed the validity of certain prior expropriation proceedings) by the following:

984. The Board shall continue, notwithstanding the institution of the Bureau, to have jurisdiction to complete and decide the expropriation cases the hearing of which shall have been commenced before it and those which shall have been referred to it before the sanction of the act instituting the Montreal Expropriation Bureau.

In my opinion, this new provision was a carry-over one, enabling the Board to complete expropriation proceedings which had originated before it, and I cannot agree that this interim clean-up provision brought in its wake a right of appeal to the Court

[Page 97]

of Appeal merely because of the repeal of the second paragraph of art. 978: see Luden v. Cité de Montréal[5]. The appellant necessarily had to found itself on a general right of appeal given by the Quebec Code of Civil Procedure, and that Code excluded from the scope of its expropriation provisions, both as they stood in 1961 and as they stood in any of the later years to which the appellant referred, expropriations made pursuant to the Montreal City Charter: see Quebec Code of Civil Procedure (1965), art. 773.

The second conclusion at which I have arrived does not require extensive explanation. Section 36 of the Supreme Court Act does not speak of an appeal from the highest Court of final resort in the province in which judgment may be had in the particular case. It is s. 41 which uses these words; the appeal under s. 36 is from a final judgment of the highest Court of final resort in the province and that is not the Quebec Superior Court.

The final matter is the application for leave pursuant to s. 41(1), as recently amended and re‑enacted by 1974-75 (Can.), c. 18, s. 5, effective January 27, 1975. It reads as follows:

41. (1) Subject to subsection (3), an appeal lies to the Supreme Court from any final or other judgment of the highest court of final resort in a province, or a judge thereof, in which judgment can be had in the particular case sought to be appealed to the Supreme Court, whether or not leave to appeal to the Supreme Court has been refused by any other court, where, with respect to the particular case sought to be appealed, the Supreme Court is of the opinion that any question involved therein is, by reason of its public importance or the importance of any issue of law or any issue of mixed law and fact involved in such question, one that ought to be decided by the Supreme Court or is, for any other reason, of such a nature or significance as to warrant decision by it, and leave to appeal from such judgment is accordingly granted by the Supreme Court.

I accept for the purpose of this application for leave that the Superior Court was the highest court of final resort in which judgment could be had, pursuant to s. 41(1). What is put in issue on

[Page 98]

this application for leave is the quantum of compensation for the loss of the tax exemption, and that in itself is not a matter on which this Court will grant leave. Moreover, if leave was to be granted this Court would be put in the position of agreeing to review a judgment of homologation, a judgment which was not concerned with the amount of compensation but only with whether the proper procedures for expropriation had been observed. There would, in short, be nothing of substance upon which this Court could act in relation to the question of the amount of compensation. Quantum is the real gravamen of the appellant’s proceedings in the Court of Appeal and in this Court, but it is not a matter cognizable here.

I would accordingly dismiss with costs the appeal from the Quebec Court of Appeal and quash the appeal from the Superior Court and dismiss the application for leave to appeal without costs.

Appeals and application dismissed with costs.

Solicitors for the appellant: Spector & Spector, Montreal.

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