In 1970 the Government of Quebec expropriated
certain immovables pursuant to the provisions of the Code of Civil Procedure
then in effect. Three years later, the rules of the Code on expropriation were
replaced by a new system applicable to all expropriations authorized by the
statutes of Quebec. After the Expropriation Act came into effect, the
government unilaterally discontinued in reliance on art. 797 C.C.P.
Under s. 55 of the Expropriation Act the expropriating party can always
discontinue, but it can do so only with the authorization of the Expropriation
Tribunal. Appellant was invited to appear with the expropriated parties before
the Expropriation Tribunal to determine the expropriation indemnities and
raised an objection to the jurisdiction of the Tribunal, alleging that, as the
Minister had discontinued, strictly speaking there was no longer any
expropriation. The Tribunal held that s. 55 was applicable and dismissed the
objection. Appellant then applied to the Superior Court for a writ of evocation
against this decision. The Superior Court allowed the application but its
judgment was reversed by the Court of Appeal. The appeal at bar was to
determine whether the government could in 1979 file a unilateral discontinuance
in the registry office in respect of the expropriations made in 1970, or
whether to do so it had to obtain the Expropriation Tribunal's authorization.
Held: The appeal should
be dismissed.
Section 55 of the Expropriation Act applies
to an expropriation begun by the Crown before the new statute came into effect.
Though s. 55 does not expressly mention the Crown, such a reference was not
necessary despite s. 42 of the Interpretation Act since, in view of s.
88 of the Expropriation Act of 1973, the Act was clearly applicable as a
whole to expropriations by the Crown. Section 88 provided that the new statute
replaced arts. 773 to 797 C.C.P. At the time, arts. 791 to 797 C.C.P.
governed expropriations by the Crown. Thus, the Crown in right of the province
itself undertook to comply with the provisions of the new statute.
The right which the Crown had to unilaterally
discontinue, and which it did not exercise at the time the new statute came
into effect, is not a vested right. A vested right is one which exists and
produces effects. That does not include a right which could have been exercised
but was not, and which is no longer available under the law.
Finally, the case at bar is not one of retroactive
legislation but one in which the statute applies immediately. The application
of s. 55 to expropriations made before it came into effect does not give it
retroactive effect. Section 55 is only intended to remove for the future the
right to file a unilateral discontinuance previously enjoyed by appellant. That
section has no effect on the right in so far as it was exercised before s. 55
came into effect.
Cases Cited
Gustavson Drilling (1964) Ltd. v. Minister of
National Revenue, [1977] 1 S.C.R. 271; Acme Village
School District (Board of Trustees of) v. Steele‑Smith, [1933] S.C.R.
47; Bellechasse Hospital v. Pilotte, [1975] 2 S.C.R. 454, applied; Procureur
général du Québec v. Archambault, C.S. Bedford, No. 455‑05‑000105‑78,
June 13, 1978, referred to.
Statutes and Regulations Cited
Code of Civil Procedure, 1965 (Que.), c. 80, arts. 791 to 797 [rep. 1973 (Que.), c. 38].
Expropriation Act, 1973 (Que.), c. 38, ss. 34, 54, 88, 148 [repl. 1973 (Que.), c. 39, s.
5].
Expropriation Act, R.S.Q. 1977, c. E‑24, s. 55 [formerly s. 54 of the Expropriation
Act, 1973 (Que.), c. 38].
Interpretation Act, R.S.Q., c. I‑16, ss. 41, 42, 49, 50.
Authors Cited
Baudouin, L. Les
aspects généraux du droit public dans la province de Québec, Paris, Dalloz,
1965.
Côté, P. A. The
Interpretation of Legislation in Canada, Cowansville, Yvon Blais Inc.,
1984.
APPEAL from a judgment of the Quebec Court of
Appeal, [1983] R.D.J. 432, reversing a judgment of the Superior Court
authorizing a writ of evocation to be issued. Appeal dismissed.
Marcus Spivock,
for the appellant.
Marcel Cinq‑Mars, Q.C., and André Durocher, for the respondents.
English version of the judgment of the Court was
delivered by
1. Chouinard
J.‑‑This appeal raises a question of temporal application of
the law.
2. It concerns two judgments of the Court
of Appeal relating to the mis en cause expropriated parties.
3. In 1973 the legislature adopted new
expropriation rules applicable to all expropriations authorized by the statutes
of Quebec: the Expropriation Act, 1973 (Que.), c. 38.
4. However, the expropriation of the
immovables of the mis en cause dates back to 1970. It was done pursuant to
arts. 791 to 797 C.C.P., 1965 (Que.), c. 80, which established special
rules for expropriations by the Crown. Under art. 792, depositing a plan and
description of the property to be expropriated with the registry office made
the government owner of the right "subject only to the obligation of
paying the indemnity awarded", and possession of the property vested
immediately in the Minister.
5. Further, art. 797 provided:
797. At any time before the payment of the indemnity, the Minister may
declare in writing that the expropriated immoveable is no longer required in
whole or in part, and from the deposit of such declaration at the registry
office, the immoveable which is not required reverts to the expropriated party,
and the indemnity for the expropriation must be fixed or revised accordingly.
6. In 1979 the Minister in fact deposited
such a declaration in respect of the immovables of each of the mis en cause.
7. Under the new Act the expropriating
party can always discontinue. However, it must do so before paying the provisional
indemnity required in order to take possession, and it can do so only with the
authorization of the Expropriation Tribunal. Section 55 of the Expropriation
Act, R.S.Q. 1977, c. E‑24, in effect at the time in question, read as
follows:
55. The expropriating party may, with the authorization of the tribunal,
totally or partially discontinue his suit at any time before payment of the
provisional indemnity of expropriation. The order of the tribunal to that
effect must be registered by deposit in the registry office where the notice of
expropriation had been registered. Subject to the registration of that order,
the discontinuance is retroactive from the date of registration of the notice
of expropriation.
In the
case of partial discontinuance, the tribunal shall fix the amount of the
indemnity to which the expropriated party is entitled by taking the
discontinuance into account and grant damages, if need be, for the portion of
which the expropriating party has discontinued his suit.
8. The specific question raised by this
appeal is whether the government could, as it did in 1979, file a unilateral
discontinuance in the registry office in respect of the expropriations made in
1970, or whether to do so it had to obtain the Tribunal's authorization.
9. Appellant, who was invited to appear
with the expropriated parties before the Expropriation Tribunal to determine
the indemnities, raised an objection to the jurisdiction of the Tribunal. The
latter concluded that s. 55 was applicable, dismissed the objection and set a
date to hear the matter on the merits.
10. Appellant then applied to the Superior
Court for a writ of evocation.
11. Essentially, appellant alleged that the
Expropriation Tribunal had no jurisdiction to determine the expropriation
indemnity because, as the Minister had discontinued, strictly speaking there
was no longer any expropriation. Appellant further alleged that the Tribunal
erred in deciding that the deed of reconveyance was void; in not taking into
account the fact that the replacement of the statute, unlike a repeal, was
intended to preserve the rights of the parties; in ignoring the presumption
that statutes do not have retroactive effect; in disregarding the fact that
this was a question of law, not a question of procedure; and finally, in not
following a judgment of the Superior Court, Procureur général du Québec v.
Archambault, C.S. (District of Bedford), No. 455‑05‑000105‑78,
June 13, 1978, in which Fortin J. held that, like any other statute, the Expropriation
Act did not have retroactive effect.
12. The Superior Court judge found in favour
of appellant and authorized a writ of evocation to be issued. He based this
finding on s. 42 of the Interpretation Act, R.S.Q., c. I‑16, and
on the transitional provision of s. 148 of the Expropriation Act of
1973, supra, as amended by 1973 (Que.), c. 39, s. 5.
13. The first paragraph of s. 42 of the Interpretation
Act provides:
42. No statute shall affect the rights of the Crown, unless they are
specially included.
14. The relevant portions of s. 148 of the Expropriation
Act of 1973 read as follows:
148. Expropriations begun before the bodies mentioned in section 147 shall
be continued, from September 26 1973, before the Superior Court or, as the case
may be, before the tribunal, in accordance with this act, to the extent that it
is applicable to them.
The
expropriated party may in respect of any such expropriation apply to the
tribunal in accordance with article 793 of the Code of Civil Procedure as if
such article had not been replaced.
The Superior Court judge wrote:
[TRANSLATION]
The Court must determine whether the Crown had special rights here not enjoyed
by other expropriating parties, or to use the phrase of Louis‑Philippe
Pigeon [Rédaction et interprétation des lois, Québec, éditeur officiel
du Québec, 1965, p. 31], whether it enjoyed a special status.
Article
797 is to be found in Section VI, titled "Expropriation by the
Crown". The actual wording of art. 797 makes it clear that the Crown
enjoys a special status, which may be exercised by the Minister responsible for
the expropriation. No other similar article gives such a right to any
expropriating party but the Crown.
Accordingly,
when the provincial government deposited the notice of expropriation in 1970,
art. 797 gave it, and it alone, the right to subsequently discontinue the
expropriation by a unilateral act.
Section
55 of the Expropriation Act requires the expropriating party to obtain the
Tribunal's authorization for discontinuing an expropriation. If that section
applied to an expropriation begun by the Crown before the new statute came into
effect, a right of the Crown would be infringed without any express provision.
Section 42 of the Interpretation Act does not permit such a construction. The
Court finds no specific indication in s. 148 that the new rule will henceforth
be applicable to the Crown. At page 32 of his text, Louis‑Philippe Pigeon
writes: "When the rule applies, any intention to depart from it must be
expressly stated to be applicable to Her Majesty, by referring to her
specifically".
The
Court accordingly concludes, taking the allegations of the motion as proven,
that the Expropriation Tribunal has no jurisdiction to set an indemnity for an
expropriation by the Crown when the latter has discontinued the expropriation
under the right conferred on it by art. 797 C.C.P.
15. In a unanimous judgment, [1983] R.D.J.
432, the Court of Appeal reversed the judgment of the Superior Court and
dismissed the motion in evocation. The Court of Appeal considered that s. 55 of
the Expropriation Act was applicable to the Crown, which had itself
undertaken to comply with the Act. The only question was whether the government
had a vested right in the unilateral discontinuance authorized by art. 797 C.C.P.,
and so whether the discontinuance was simply a matter of procedure as opposed
to a substantive right. Jacques J.A. wrote for the Court at p. 434:
[TRANSLATION]
A discontinuance before judgment, whether in an expropriation proceeding or
otherwise, is a relinquishment of the exercise of a right but it does not
entail relinquishing the right itself. Its effect is to return matters to the
state they were in before the action. It is part of the procedure governing the
exercise of rights. It is not a right which exists independently of the
proceedings used to exercise a right, such as the right to expropriate itself,
or any other right of action.
A
discontinuance is therefore simply a matter of procedure, not a substantive
right.
The new
Act regulates the way in which the plaintiff, or the expropriating party, may
use this procedure. It requires certain formalities to be complied with to
prevent the injustices which may sometimes result from discontinuance.
As it
is now well established (Pigeon L.‑P., Rédaction et interprétation des
lois, Québec, 1965, p. 49) that a new rule of procedure applies to cases
pending when it comes into effect, it follows that the discontinuance which the
Attorney General of the province wished to make had to be authorized by the
Expropriation Tribunal pursuant to s. 55.
16. From the factums and arguments of the
parties, it appears that in order to dispose of this appeal the Court must
consider the following four points, which in my opinion cover all the principal
arguments made by appellant and respondents:
(1)‑‑whether
the Expropriation Act, and in particular s. 55, applies to the Crown;
(2)‑‑the
presumption that vested rights may not be adversely affected;
(3)‑‑the
presumption against retroactive legislation;
(4)‑‑the
finding by the Expropriation Tribunal that the 1979 deed of reconveyance is
invalid because it is contrary to the provisions of s. 55.
1‑‑ Applicability of the Expropriation
Act, in Particular s. 55, to the Crown
17. The argument accepted by the Superior
Court judge was based on s. 42 of the Interpretation Act, which provides
that no statute shall affect the rights of the Crown unless they are specially
included.
18. In the submission of the appellant, the
Crown's right is a "right of ownership". Under art. 792 C.C.P.,
merely depositing a plan and description made the Crown owner of the
expropriated property. Under art. 797 C.C.P., the Crown was entitled in
its discretion to convey the property back to the expropriated party simply by
registering a notice. If the Crown was under a duty to obtain authorization
from the Tribunal, its "right of ownership" would be affected.
19. It is true that s. 55 of the Expropriation
Act does not expressly mention the Crown, nor does s. 148.
20. In addition to this silence, appellant
relied on the final words of the first paragraph of s. 148: "to the extent
that it is applicable to them".
21. To weigh the merits of this argument more
adequately, I again quote the paragraph in question:
148. Expropriations begun before the bodies mentioned in section 147 shall
be continued, from September 26 1973, before the Superior Court or, as the case
may be, before the tribunal, in accordance with this act, to the extent that it
is applicable to them.
22. In appellant's submission the words in
question clearly show that the legislator did not intend to alter existing
rights. Appellant submitted that, in deciding whether the new statute is
applicable to expropriations begun before it came into effect, this Court
should consider the judgments which the Superior Court and the Expropriation
Tribunal can make. If those judgments have an effect retroactive to the time
when the new statute was not in effect, and have the consequence of denying
rights and creating jurisdiction, the new statute cannot be applied.
23. Alternatively, s. 55 of the Act makes it a
condition of jurisdiction that the discontinuance should be made before the
expropriating party pays the provisional indemnity and so before it takes
possession and acquires the right of ownership. Appellant submitted that the Code
of Civil Procedure does not impose on the Crown an obligation to pay a
provisional indemnity before taking possession. The Crown became owner
immediately by filing the plan and description of the property to be
expropriated. In strictly functional terms, therefore, appellant submitted, s.
55 cannot apply to an expropriation done by the Crown before the legislator
passed the new statute.
24. With respect, this reasoning does not
appear to be persuasive. Since the Crown did not have to pay a provisional
indemnity, merely a final indemnity, the condition imposed by s. 55 was not
broken so long as the final indemnity had not been paid. I see no inconsistency
in this which could make s. 55 impossible to apply. The same is true for
possession. As the Crown proceeded validly under the provisions of the Code
of Civil Procedure and was in possession, s. 55 can still be applied: the
only result is that if the Crown was authorized to discontinue it would have to
hand over possession as well as ownership.
25. Respondents gave the words "to the
extent that it is applicable to them" a completely different meaning. It
appears from reading the first paragraph of s. 148 that the powers in an
expropriation proceeding are divided between the Tribunal and the Superior
Court. This division differs from that under the Code of Civil Procedure.
The way the matter proceeds is also dealt with differently. Respondents simply
concluded:
[TRANSLATION] ... what s.
148 means is that the provisions of the new Act are immediately applicable and
that an expropriation proceeding will be conducted in the Superior Court or
before the Expropriation Tribunal depending on which one has jurisdiction over
the stage in question.
26. Whatever the meaning of these words, and
without deciding although I am inclined to think that respondents are correct,
I do not believe that they are conclusive.
27. In my opinion what is conclusive is that
the Expropriation Act of 1973 is clearly applicable as a whole to
expropriations by the Crown.
28. Section 88 provides:
88. This act replaces Chapter Three of Title Two of Book Five of the Code
of Civil Procedure, comprising articles 773 to 797.
29. Expropriation by the Crown is included in
the articles replaced by the new Act.
30. Section 34 provides that the Act applies
to all expropriations authorized by the laws of the Province of Quebec. These
provisions are quite adequate and it was not in any way necessary, in order to
comply with s. 42 of the Interpretation Act, to make a special reference
to the Crown in s. 55 or s. 148.
31. I concur with Jacques J.A. of the Court of
Appeal, who wrote at p. 434:
[TRANSLATION]
It is thus clear that the Crown in right of the province itself undertook to
comply with the expropriation procedure of the ordinary law, and that inter
alia it undertook to be governed by the provisions of s. 55 of the Act.
32. Further, appellant did not argue that the
new Act, including s. 55, does not apply to an expropriation begun after the
Act had come into effect. That at least is what I understand when he writes:
[TRANSLATION] "We do not maintain that for ... an expropriation begun on
April 1, 1976 the Crown should not follow the new Act". Rather, he argued
that the new Act does not apply to expropriations begun before the Act was
passed. For the reasons given above, I dismiss this argument in so far as it is
based on s. 42 of the Interpretation Act. The fact that the Crown is not
specifically mentioned in s. 55 and s. 148 should not have different effects
depending on whether the expropriation was begun before or after the new Act
came into effect.
2‑‑Presumption that Vested Rights Not Affected
33. Appellant argued that the right which the
government had under the Code of Civil Procedure to unilaterally
discontinue was a vested right which could only be abolished by an express
provision of the law.
34. In disposing of this argument, the Court
of Appeal considered the question of whether the right was a substantive or
merely a procedural one. The Court of Appeal concluded that the discontinuance
was merely a matter of procedure. It held that since a rule of procedure
applies to pending cases as soon as it comes into effect, the discontinuance
had to be authorized by the Tribunal pursuant to s. 55.
35. With respect, I will examine this question
differently because that is not the position taken by the respondents, in this
Court at least. Respondents did not argue that the discontinuance was merely a
matter of procedure as against a substantive right. Their submission stated:
[TRANSLATION]
The Court of Appeal took the position that the discontinuance was merely a
matter of procedure. Under the old law, the Crown had the right to discontinue
if it saw fit to do so. This right was abolished by the new Act and, like any
other expropriated party, the Crown must first obtain the authorization of the
Expropriation Tribunal. We submit that this was more than merely a readjustment
of procedure. It ceases to be a question of form when the Expropriation
Tribunal can reject a discontinuance.
...
In the past the Crown had
an unlimited right. That right is now subject to authorization being given. To
the extent that the Tribunal can reject a discontinuance or allow it subject to
conditions, the legislative amendment in our view ceases to be purely a matter
of form.
36. In my opinion the right which the Crown
had to unilaterally discontinue, and which it had not exercised at the time the
new Act came into effect, is not a vested right.
37. A vested right is one which exists and
produces effects. That does not include a right which could have been exercised
but was not, and which is no longer available under the law. The courts and
scholarly commentators distinguish between a vested right and what they call
either a possibility or an option.
38. Respondents submitted:
[TRANSLATION] In 1970 the
Crown acquired only the right to expropriate the land of the mis en cause. As
regards the option which it then had to unilaterally discontinue its
expropriation, nothing was done to exercise such a right: the option remained
merely a possibility.
39. I consider that the judgment of this Court
in Gustavson Drilling (1964) Ltd. v. Minister of National Revenue,
[1977] 1 S.C.R. 271, supports their argument.
40. In that case a business wished to deduct
from its income for tax purposes expenses which it had incurred earlier, at a
time when they could be legally deducted. The amended legislation no longer
allowed this.
41. Dickson J., as he then was, wrote for the
majority at p. 282:
The rule is that a statute
should not be given a construction that would impair existing rights as regards
person or property unless the language in which it is couched requires such a
construction: Spooner Oils Ltd. v. Turner Valley Gas Conservation Board,
[1933] S.C.R. 629, at p. 638. The presumption that vested rights are not
affected unless the intention of the legislature is clear applies whether the
legislation is retrospective or prospective in operation.
42. Dickson J. went on, at pp. 282‑83:
The burden of the argument
on behalf of appellant is that appellant has a continuing and vested right to
deduct exploration and drilling expenses incurred by it, yet it must be patent
that the Income Tax Acts of 1960 and earlier years conferred no rights in
respect of the 1965 and later taxation years .
...
The
mere right existing in the members of the community or any class of them at the
date of the repeal of a statute to take advantage of the repealed statute is
not a right accrued: Abbott v. Minister of Lands, [1895] A.C. 425, at p.
431; Western Leaseholds Ltd. v. Minister of National Revenue, [1961]
C.T.C. 490 (Exch.); Director of Public Works v. Ho Po Sang, [1961] 2 All
E.R. 721 (P.C.).
43. Applying these principles to the case
before the Court, it follows that appellant had no vested right to a unilateral
discontinuance. After 1970 and until the new Act came into effect, he could
have unilaterally discontinued. At the time appellant wished to discontinue, he
had to seek the Tribunal's authorization.
44. This interpretation of the new Act must
still not give it a retroactive effect not expressly authorized by the Act
itself, and this leads me to the third point.
3‑‑Presumption Against Retroactive Legislation
45. The presumption against retroactive
legislation is stated as follows in Gustavson Drilling, supra, in
which Dickson J. wrote at p. 279:
The general rule is that
statutes are not to be construed as having retrospective operation unless such
a construction is expressly or by necessary implication required by the
language of the Act. An amending enactment may provide that it shall be deemed
to have come into force on a date prior to its enactment or it may provide that
it is to be operative with respect to transactions occurring prior to its
enactment. In those instances the statute operates retrospectively.
46. Section 50 of the Interpretation Act
reflects this principle:
50. No provision of law shall be declaratory or have a retroactive effect,
by reason alone of its being enacted in the present tense.
47. A distinction must be made between the
retroactivity of legislation and its immediate effect.
48. In Les aspects généraux du droit public
dans la province de Québec, Paris, Dalloz, 1965, Louis Baudouin writes at
p. 197:
[TRANSLATION]
New legislation cannot be applied either to immediate effects already produced
or to those which, though occurring over an extended period of time since the
legal situation was created, yet occurred before the date the legislation came
into effect. Allowing this would give a clear retroactive effect to the new
legislation.
On the
other hand, the new legislation will apply to future effects arising out of
these legal situations, which have not yet occurred at the time it came into
effect.
49. In The Interpretation of Legislation in
Canada, (1984), Pierre‑André Côté writes at pp. 132‑33:
A
statute operates in the present when it governs events occurring after its
commencement and before its death. According to Roubier, Le droit
transitoire (conflit des lois dans le temps), 2d ed., Paris, Dalloz et
Sirey, 1960, "immediate and prospective application of the statute should
be the rule: from the day of its commencement, the new statute applies to all
future effects of both pending and future legal relations".
...
As a
rule, a statute produces its effect in the present, governing events that take
place between its commencement and its death. Saying that it produces its
effect in the present and is of prospective application amounts to saying that
it does not operate prior to its enactment, that is, that it is not
retroactive. A second corollary is that the statute applying immediately in the
present does not allow for the survival of previous legislation.
This
principle is so obvious and self‑explanatory that it rarely appears as
such in the case law, but there are numerous examples of its application ...
50. In Gustavson Drilling, supra,
it was held that applying the new provisions of the Income Tax Act to
the appellant in respect of expenses incurred before they came into effect was
not giving them retroactive effect. Dickson J. wrote at pp. 279‑80:
The effect, so far as
appellant is concerned, is to deny for the future a right to deduct enjoyed in
the past but the right is not affected as of a time prior to enactment of the
amending statute.
51. Similarly, respondents submitted, s. 55 of
the Expropriation Act is intended to remove for the future the right to
file a unilateral discontinuance previously enjoyed by appellant. That section
has no effect on the right in so far as it was exercised before s. 55 came into
effect.
52. Respondents further cited ss. 41 and 49 of
the Interpretation Act:
41. Every provision of a statute, whether such provision be mandatory,
prohibitive or penal, shall be deemed to have for its object the remedying of
some evil or the promotion of some good.
Such
statute shall receive such fair, large and liberal construction as will ensure
the attainment of its object and the carrying out of its provisions, according
to their true intent, meaning and spirit.
49. The law is ever commanding; and whatever be the tense of the verb or
verbs contained in a provision, such provision shall be deemed to be in force
at all times and under all circumstances to which it may apply.
53. Respondents submitted that the purpose of
the new Act was to abolish the extraordinary privilege of the Crown to
discontinue unilaterally. They wrote:
[TRANSLATION]
The abuse which the new Act remedies is the fact that the Crown will now no
longer be able to unilaterally discontinue an expropriation. Conversely, the
advantage it confers on the expropriated party is that the Expropriation
Tribunal will be able to protect his interests by controlling the cases in
which the Crown discontinues an expropriation.
54. Thus, respondents argued, the new Act
takes effect immediately.
55. Respondents' position is supported inter
alia by the following two judgments of this Court: Acme Village School
District (Board of Trustees of) v. Steele‑Smith, [1933] S.C.R. 47,
and Bellechasse Hospital v. Pilotte, [1975] 2 S.C.R. 454.
56. Acme Village School involved s. 157
of the Alberta School Act of 1931 which stated that, except in June of
each year, no notice terminating the employment of a teacher could be given by
a school board without the prior approval of an inspector. It was held that
this provision applied to a notice given after the new Act came into effect
with respect to a contract of employment entered into before it.
57. In Bellechasse Hospital, a board of
directors refused to renew the appointment of Dr. Pilotte as a member of the
medical staff as of July 31, 1969. The Board was in compliance with internal
regulations and private agreements concluded between the parties which expired
on July 31, 1969. However, it had not acted in accordance with the new
government Regulations adopted pursuant to the Hospitals Act, R.S.Q.
1964, c. 164, which became effective on April 1, 1969. It was held that the new
Regulations applied to all contracts, even those entered into before the
Regulations came into effect, that the hospital's decision was a breach of
those Regulations and that Dr. Pilotte had a good cause of action for damages.
De Grandpré J. wrote for the Court at pp. 460‑61:
As
Lajoie J.A. points out, the objective of the Hospitals Act and the
Regulations is clearly to "unify and standardize organization,
administration and operations of hospitals". That objective would not be
attained if, after the Order in Council of April 1, 1969 came into effect,
different dates were to apply to contractual relations between doctors and
hospitals. On the contrary, after that date it was necessary, from the
standpoint of discipline as much as of renewal of status, for a single, uniform
rule to apply, namely that prescribed by the Regulations. Any other conclusion
would necessarily result in recognizing the existence of variations which for
an indefinite period would largely render inoperative the legislator's express
decision to standardize this whole area of health services. This necessarily
leads to two conclusions:
(1) after April 1, 1969
all suspension proceedings had to be in accordance with the provisions of the
Regulations;
(2) also after that date,
all contracts between doctors and hospitals were to be automatically extended
to December 31, 1969, thus enabling the appointment procedure prescribed by the
Regulations to be carried out.
58. I consider that as in Gustavson
Drilling, Acme Village School and Bellechasse Hospital the
case at bar is one in which the statute applies immediately and not
retroactively and that s. 55 of the Expropriation Act required that, in
order to discontinue, appellant should obtain the Tribunal's authorization.
4‑‑ Finding by Tribunal that 1979 Deed of
Reconveyance is Invalid Because Contrary to Provisions of s. 55
59. Appellant raised a new ground in this
Court. He objected particularly to the following passage from the Tribunal's
decision:
[TRANSLATION]
For all these reasons, the Tribunal concludes that the reconveyance deed filed
with the Richelieu Registry Division at Sorel as No. 178745 and dated March 2,
1979 is invalid because it is contrary to the provisions of s. 55 of the
Expropriation Act.
60. Appellant contended that the Tribunal
lacked jurisdiction to rule on the validity of the registration of reconveyance
notices, and that so long as these remained in the registry office the Tribunal
had no jurisdiction to determine indemnities. It is true to say that the
Tribunal's finding can have no effect on registrations: that is not within its
jurisdiction; but the Tribunal did not purport to exercise such jurisdiction.
It did not direct that the deed should be struck out, and this will have to be
done if necessary at the request of appellant or by an order of a competent
tribunal. The passage cited above is only a means of expressing the finding of
the Expropriation Tribunal. It simply held, correctly, that s. 55 was
applicable to an expropriation dating from before it came into effect.
61. I would dismiss the appeal with costs.
Appeal dismissed with costs.
Solicitors for the appellant: Roy, Poulin & Associés,
Montréal.
Solicitors for the respondents: Martineau, Walker,
Montréal.
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