Supreme
Court of Canada
Toronto
Junction (Town) v. Christie, (1895) 25 S.C.R. 551
Date:
1895-12-09
The
Corporation of the Town of Toronto Junction (Plaintiff) Appellant;
and
David D.
Christie (Defendant) Respondent.
1895: May 17, 18; 1895:
December 9.
Present: Sir Henry Strong
C.J., and Taschereau, Gwynne, Sedgewick and King JJ.
ON APPEAL FROM THE COURT OF
APPEAL FOR ONTARIO.
Appeal—Increasing damages without
cross appeal—Rule 61, Supreme Court
Rules—Special statute.
Under the Ontario Judicature
Act, R.S.O. [1887], c. 44, ss. 47 and 48 the Court of Appeal has power to
increase damages awarded to a respondent without a cross-appeal, and the
Supreme Court has the like power under its rule no. 61. Taschereau J.
dissenting.
Per Strong C.J.—Though the court will not
usually increase such damages without a cross-appeal, yet where the original
proceedings were by arbitration under a statute requiring the court, on appeal
from the award, to pronounce such judgment as the arbitrators should have
given, the statute is sufficient notice to an appellant of what the court may
do, and a cross-appeal is not necessary.
APPEAL from a decision of
the Court of Appeal for Ontario
affirming, by an equal division of opinion, the judgment of Mr. Justice Rose,
on an appeal from the award of arbitrators in an arbitration under the Ontario
Municipal Act.
The
respondent, Christie, claimed damages from the town corporation for injury to
his property by reason of the grade of the street having been raised some six
feet, and his claim was submitted to arbitration under the provisions of The
Municipal Act. The arbitrators found that the property had been benefited by
the change in the grade rather than injured, but considering that he was
technically entitled to damages they awarded him $100 and a portion of the
costs. On ap-
[Page 552]
peal to
a judge from the award the damages were increased to $1,000 with full costs,
the learned judge being of opinion that he could deal with the matter at large.
On further appeal the judges in the Court of Appeal were equally divided in
opinion as to the jurisdiction of the judge to increase the damages, and his
judgment stood affirmed. The corporation then appealed to this court.
Aylesworth
Q.C. and Going for appellants argued that all that could be done on appeal was
to affirm or set aside the award, citing Lemoine v. The City of Montreal; Paradis v. The Queen;
Morrison v. The Mayor of Montreal.
Riddell and Gibson for the
respondent referred to Charland v. The Queen;
Guay v. The Queen.
THE
CHIEF JUSTICE.—I have read the judgment
prepared by Mr. Justice Gwynne in this case and I agree with it in all
respects. I only desire to add that it is not to be considered in any respect
as a departure from the rule already laid down by this court in the cases in
which it was held that when there was no cross-appeal the court would not
increase the damages awarded to the respondent.
The
court has so held not because it has no jurisdiction in such cases to increase
the damages, for the rule relating to cross-appeals leaves the right to
interfere in behalf of a respondent entirely in the discretion of the court,
but for the reason that it is fair to an appellant that the respondent, if he
desires to object to the judgment appealed against, should formulate his
[Page 553]
objection
by giving notice in order that the appellant may be apprised of what he is
required to answer.
In the
present case the appeal to the Court of Appeal of Ontario was under a statute
which required the court to pronounce just such judgment as in its opinion the
arbitrators ought to have awarded. The statute itself, therefore, was
sufficient notice of what the court might be called upon to do, and the same
reason applies in this court.
The
appeal must be dismissed with costs, subject to the variation directed in Mr.
Justice Gwynne’s judgment.
TASCHEREAU
J.—I would dismiss the appeal
which should never have been taken.
GWYNNE
J.—I cannot entertain a doubt
that the learned judge Mr. Justice Rose before whom this case came by way of
appeal from the award made by the arbitrators herein had authority and
jurisdiction under the provisions of the Ontario Municipal Act of 1892, to deal
with the case in the manner in which he did. This case, in my opinion, is an
apt illustration of the wisdom of the legislature in making awards in matters
of this nature, wherein the injured party is deprived of his remedy by action
at law, appealable to the courts, for I must say I find it difficult to
maintain the award of the majority of the arbitrators upon any principle of law
and justice which is reconcilable with the evidence; the judgment of the
learned judge upon the appeal is not in my opinion, open to any objection
unless it be that which has been suggested by himself in his judgment, namely,
that he does not feel at all satisfied that the amount allowed by him and to
which he has increased the amount of the award is sufficient to compensate the
plaintiff for the injury
[Page 554]
complained
of or to put the houses into the condition in which they were before the execution
by the defendants of the work which has caused to them the injury complained
of. The property which has been injuriously affected by work performed by the
Municipality of the town of Toronto Junction in the exercise of their powers
consists of two brick houses having together a frontage of about thirty-six
feet erected upon a small town plot of about forty feet in width and one
hundred feet in depth. The predecessor of the plaintiff in title purchased in
the year 1889 the town plot before it had any building erected upon it. The lot
was for the most part situate in low land. It does not appear to have had and
indeed could not have had any value except as a building site. Accordingly,
immediately upon acquiring it the plaintiff’s predecessor in title, in order to
make it valuable, resolved to erect upon it two small but substantial brick
houses having good cellars, and fitted so as to be heated by a hot air furnace,
but before doing so, as the lot abutted upon two streets which would be likely
at some time to be raised above the level of the land as it then was, he, as
shown by the evidence and found as a fact by the learned judge, communicated
with the corporation officials and endeavoured to ascertain the grade to which
the streets upon which his lot abutted would be raised, but was unable to
obtain any information further than that the streets would probably be raised
two feet. He could obtain no levels from the corporation; all that he could
obtain was that the corporation engineer surveyed the lot for him, for the
purpose no doubt of defining its limits along the street so as to prevent the
buildings proposed to be erected encroaching upon the streets. In order to be,
as he conceived, upon the safe side he erected the houses along the limits of
the streets as so defined so as to allow four feet instead of two for the
eleva-
[Page 555]
tion to
which the grade of the streets could be raised without causing any damage to the
houses and so that the first floor of the houses was upwards of six feet above
the natural level of the ground as it then was. The houses were finished in the
summer or autumn of 1890, and as so finished were supplied with good and
sufficient drainage, and the corporation has ever since enjoyed the benefit of
the increased taxation to which the property became subjected, as property
having dwelling houses erected thereon. Now, some time after the completion of
the houses, and while they were occupied by tenants at the rent of about $10
each per month, and in the year 1891, the corporation proceeded to raise the
grades of the streets, and while such work was in progress, being advised that
a by-law should be passed, the municipal council of the corporation upon 5th of
August, 1891, passed a by-law numbered 219, whereby it was enacted
that
the plans and profiles of Dundas Street, Weston Road south, Annette Street,
Ontario Street and Union Street, as prepared by the town engineer, and
deposited in his office, be approved and adopted, and that the said streets be
graded in accordance with said plans and profiles under the direction of the
town engineer, who is authorized to carry out said work.
The
streets upon which the town plot under consideration abutted were the above
named Annette and Union Streets. After the passing of this by-law and
thereunder those two streets were elevated to the height of upwards of six feet
above the natural level as it had been, and so that the crown of those streets
was about on a level with the first floor, that is to say, with the ceilings of
the cellars of the houses as they had been erected.
Had the
streets been elevated to the height of four feet only above their former
natural level no damage whatever would have been caused to the houses. It is
only for damage consequent upon their having been
[Page 556]
raised
two feet still higher that the plaintiff complains. Now the evidence of the
gentleman who was mayor of the town in 1891 seems to cast some doubt upon the
bona fides of the elevation to which the streets were raised, and as to the
necessity for such elevation. He says that he used to ask the council why so
much earth was being put down on the streets, but never got a satisfactory
explanation. He formed the opinion that private parties were getting it done
for the benefit of their own lands. A gentleman, he says, who owned property in
the neighbourhood seemed to have a pull on the subway earth (that is earth
which the corporation in making a subway for a railway had to remove) and he
says that he considered that the grade of the streets was raised so high as a
good way of getting rid of the subway earth and to benefit the property of that
gentleman and of others in the neighbourhood, the plaintiff’s property being in point
of fact the only property which was damaged thereby. But whether the streets
were or were not raised to the height to which they were raised, either
unnecessarily or malâ fide, for the purpose of benefiting the property of
others by damaging that of the plaintiff is immaterial for our present purpose
for the Municipal Act ch. 184 R.S.O. sec. 483 expressly enacts that:
Every
council shall make to the owners or occupiers of, or other persons interested
in, real property taken or owned by the corporation in the exercise of any of
its powers or injuriously affected by the exercise of its powers, due
compensation for any damage necessarily resulting from the exercise of such
powers beyond any advantage which the claimant may derive from the contemplated
work, and any claim for such compensation, if any, not mutually agreed upon,
shall be determined by arbitration under this act.
The
effect of raising the streets upon which the houses abutted to the height to
which they were raised was 1st, to deprive the houses of the drainage which
[Page 557]
they
had had without providing any substitutionary mode of drainage, and 2nd, to
cause all the water falling upon the streets to pour down into the cellars of
the houses and to make them as the evidence abundantly shows not only
unsaleable but utterly uninhabitable unless and until some effectual mode of
repairing the damage done and preventing a recurrence of the nuisance should be
adopted. The evidence also shows that while the drainage which the houses
formerly had is cut off, and while the corporation have constructed two drains
in the adjoining streets, one is not placed low enough to carry off the water
from the plaintiffs houses and into the other; although situate low enough the
corporation have refused permission to the plaintiff to have access. For the
injury thus caused the plaintiff had to pay his tenants for injury to their
property $33 and to expend the further sum of $75 in executing some temporary
work to prevent in some degree the recurrence of a flood of like character into
the cellars of the houses; besides the moneys so expended amounting together to
$108, and the loss of tenants ever since by reason of the houses having been
rendered untenantable, the plaintiff has been damnified to the extent of the
amount necessary to put the houses into as good and tenantable state of repair
as that in which they were before the streets were raised to the height which
has caused the injury complained of.
Now the
nature and extent of the damage done consequential upon the work of the
corporation and the cost of making all necessary repairs and of putting the
houses into as tenantable a state of repair as they were in before that work
was done are matters capable of pretty precise estimate by witnesses who are
experts. Several witnesses of this description having large experience in the
value of property of this description, have testified that the houses in their
present condition
[Page 558]
are
wholly untenantable and also unsaleable, unless at the sacrifice of fully 50
per cent of the cost of the houses, that is to the amount of about $2,000, the
actual cost of the two houses having been $4,000, and two architects and
builders of houses have made precise estimates in items of the amount necessary
to be expended in making the houses tenantable and in preventing a recurrence
of the damage. Adopting that which is the lowest and therefore most favourable
to the corporation, we find that amount to be $1,673.20. Of this sum $155
covers all the items in the estimate which can fairly be attributed to damage
arising, assuming any to have arisen, from any other cause than the work for
which the corporation are responsible, namely the cutting off the drainage
which the houses had and substituting no other in its place, and the flooding
of the houses necessarily arising from the grade of the streets having been
raised to the level of the ceilings of the cellars, that is to say to a height
of two feet above a point at which if the grade had been fixed no damage
whatever could have been caused to the plaintiff’s property.
These
items are:
|
1.
Repairing settlement brick and stone............................................................................
|
$75 00
|
2. Carpenters’ work, rebuilding
foundation, sheeting base of porches and steps, fitting doors, trimmings,
&c., after raising..........................................................................
|
|
3.
Repairing plastering, painting and cementing down pipes.......................................
|
|
|
|
|
Deducting this sum from the above
$1,673.20, leaves the sum of $1,518.20 as the lowest estimate of the cost of
putting the premises into that tenantable state of repair in which they were
before the corporation executed the works complained of.
[Page 559]
The contention of the corporation was
that there had been a settling of part of the walls of the houses, which as was
contended caused at least some part of the damage done. Now, although it is
true that the evidence showed that when the foundation was being built there
did occur a slight settlement at one point, still the evidence showed also that
it was observed at the time and that provision was made to rectify it, and that
there had been no settlement whatever after the houses were completed. However,
ex majori cautelâ, and to avoid allowing to the plaintiff anything in respect
of damage which the work of the corporation did not cause, I deduct the above
sum of $155 as covering all items in the estimate for any damage which can be
attributed to any other cause than the work of the corporation.
Now, to the above sum of $1,518.20, it
is but just and reasonable that $108 expended in manner above mentioned should
be added, thus making $1,626.20, and as the houses which formerly were rented
at $10 per month each have been rendered utterly untenantable by the damage
consequential on the work of the corporation, it is but reasonable that some
allowance for loss of rent should be made. Upon this point it was urged on
behalf of the corporation that there has been a general fall in rents, and
indeed in the value of all real property in the neighbourhood, and that the
houses might have become unoccupied, or if not occupied at very reduced rents
even if the streets had never been raised. It was, however, the work of the
corporation which made them untenantable, in which condition, by reason of
their resisting the claim of the plaintiff, they continued to be for two years
up to the date of the award. Under these circumstances the corporation cannot
reasonably ask that a greater reduction should be made from the amount the
plaintiff
[Page 560]
would have received for rent, but for
the work of the corporation, than 50 per cent of the amount formerly received.
At this rate there should be added to the above sum of $1,626.20 the further
sum of $240 for two years rent at $5 per month per house, making $1,866.20.
Now, the arbitrators by their award have found that the premises of the
plaintiff have been injuriously affected by the works of the corporation, but
to the amount only of “$200” over and above
any benefit and advantage
to the said land and premises arising from the grading and levelling of said
streets.
How the arbitrators arrived at this
sum we have no means of determining, nor had Mr. Justice Rose save by perusal
of the evidence taken on the arbitration. The award, however, in its terms
seems to show that some amount, though how much we cannot even guess, for no
amount whatever was suggested in the evidence, has been deducted by the
arbitrators from the cost of reinstating the premises in a tenantable condition
as for some benefit or advantage which it has been assumed has been conferred
upon the property which has been injured by the works of the corporation.
Assuming any such deduction to have been made I not only concur with Mr.
Justice Rose in holding that the award is wholly irreconeilable with the
evidence but am of opinion that such a deduction in the present case would be
contrary to every principle of justice and is unwarranted by the statute under
which the arbitration has taken place. What the statute, namely sec. 483 of the
ch. 184 R.S.O., enacts is that the corporation shall pay to all owners of
property injuriously affected by work done by the corporation in the exercise
of its powers—
due, that is to say full,
compensation for any damage necessarily resulting from the exercise of these
powers beyond any advantage which the claimant may derive from the contemplated
work.
Now I must say that to me it does not
seem to be possible within the limits of common sense to conceive how a small
property like that of the plaintiff (the whole value of which consisted in the
enjoyment of the two houses as dwelling houses together with the appurtenances
thereto belonging), or how the claimant himself could derive any advantage
whatever in respect of such property from work the necessary results of which
has been proved to be that the houses have been rendered uninhabitable and even
unsaleable at any price short of a sacrifice of at least 50 per cent of their
cost; and that an outlay of a sum exceeding $1,500 is necessary to reinstate
them in as good and tenantable a condition as they had been in. What the
statute contemplates and the utmost it authorizes is that the value of any
benefit if any there be which the injured property, that is to say which the
property in its injured condition, may derive from the work which causes the
injury if it can be ascertained and is not wholly speculative may be deducted
from the amount which, apart from the value of such benefit, would be required
to afford due compensation for the injury.
If, for
example, property be injured in such a manner that it is necessary that the
injury caused should be repaired before any benefit could accrue, the statute
is not open to a construction so at variance with common justice and common
sense, as that the prospective speculative estimate of the value of such
benefit should be deducted from the amount necessary to repair the injury and
to put the property into a condition to receive such benefit. Such benefit
could not be said to be derived from the work causing the injury, but from the
outlay expended to repair the injury. In the present case there is no suggestion
whatever in the evidence that the plaintiff’s property, in the condition in which
it was when injured, has derived, or could
[Page 562]
derive, any benefit from the work
which has caused the injury; all that is suggested is that if the plaintiff’s property had been quite
different from what it was, that is, if it had been a vacant lot, it would in
that case have derived some benefit from the work, the value of which benefit
was so wholly speculative and unsubstantial and unreal that no attempt even was
made to estimate it; but as to the plaintiff’s property in the condition in which
it was, being house property, the evidence is that nothing but injury resulted
to it from the corporation work, which injury must continue until repaired or
until due compensation, as required by the statute, shall be given therefor.
Although there has been no
cross-appeal instituted by the plaintiff against the judgment of
Mr. Justice Rose, still the Ontario Judicature Act ch. 44 ss. 47 and 48
R.S.O. and the rule of court, no. 16, made under that Act, gave full power to
the Court of Appeal for Ontario to increase the amount to which the award had
been increased by Mr. Justice Rose, and so likewise has this court like power
under its rule no. 61.
In The
Queen v. Robertson,
although there was no cross-appeal, this court gave judgment in favour of the
respondent upon a point in the case which the court below had adjudged against
him. This is the precedent which I think should be followed in the present
case, in order to prevent what otherwise, as it appears to me, would be a
complete failure of justice, and that the plaintiff may have that adequate
compensation for the injury done to his property by the work of the corporation
which the statute contemplated assuring to him, and to prevent this remedy by
arbitration to which he is limited by the statute proving to be illusory. I am
of opinion, therefore, that the award should be increased to the above sum of
[Page 563]
$1,866.20, for which sum, with
interest thereon from the 19th of October, 1893, the date of the award, the
plaintiff should have judgment, together with his costs, and that this
variation being made the appeal should be dismissed with costs.
SEDGEWICK and KING JJ. concurred.
Appeal dismissed with
costs, and judgment varied.
Solicitor for the
appellants: Charles C. Going.
Solicitor for the
respondent: A. Cecil Gibson.
See City of
Montreal v. Labelle 14 Can. S.C.R. 741; Stephens v. Chausse 15 Can.
S.C.R. 379; Bulmer v. The Queen 23 Can. S.C.R. 488.
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