Supreme Court of Canada
McKillop (Township) v. Logan (Township), (1899) 29 S.C.R. 702
Date: 1899-10-03
The Corporation of the Township of McKillop (Defendant) Appellant;
and
The Corporation of the Township of Logan and Others (Plaintiffs) Respondents.
1899: May 31; 1899: October 3.
Present: Sir Henry Strong C.J. and Taschereau, Gwynne, King and Girouard JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.
Ditches and Watercourses Act, 1894 (Ont.)—Owner of land—Declaration of ownership—Award—Defects—Validating award—57 V. c. 55—58 V. c. 54 (Ont.).
A lessee of land with an option to purchase the fee is not an owner who can initiate proceedings for construction of a ditch under The Ditches and Watercourses Act, 1894, of Ontario. Township of Osgoode v. York (24 Can. S.C.R. 282) followed.
If the initiating party is not really an owner the filing of a declaration of ownership under the Act will not confer jurisdiction.
Section 24 of the Act, which provides that an award thereunder, after expiration of the time for appealing to the judge, or after it is affirmed on appeal, shall be binding notwithstanding any defects in form or substance either in the award or any of the proceedings, does not validate an award or proceedings where the party initiating the latter is not an owner.
APPEAL from the judgment of the Court of Appeal for Ontario reversing the judgment of Armour C.J. at the trial.
This appeal involved the validity of an award by an engineer under The Ditches and Watercourses Act, 1894, of Ontario, the award being attacked on the ground that Kelly, who initiated the proceedings for construction of a ditch on which the award was made
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was not an “owner” under the Act, being only a lessee of land though holding an option to purchase the fee. The Court of Appeal upheld the award on the ground that an objection to the declaration of ownership could not be taken after the award was filed.
Shepley Q.C. for the appellant.
Garrow Q.C. and Thompson for the respondents.
THE CHIEF JUSTICE.—I am of opinion that this appeal must be allowed.
It may be assumed in the respondent’s favour that this was not a proceeding for the reconsideration of the former award made by McKenna, but an original proceeding under section 33. This was the opinion of a majority of the learned judges in the Court of Appeal, and I am willing to accept their view as the correct one, though without any intention of pronouncing decisively on the point.
That Kelly was not an owner within the meaning of that word as used in the Act of 1894, is, I think, established by the authority of Osgoode v. York in this court. The Act of 1894 contains an interpretation clause which the former Act under which Osgoode v. York2 was decided did not contain, but it does not define the meaning of the word “owner” standing alone, and we must therefore attribute to that word the same meaning which was given to it in the previous decision referred to. This interpretation clause however declares that the word “owner” shall mean and include not only an “owner” but any person entitled to sell and convey the land. This expression “the land” clearly would not apply to a mere chattel interest; it can only mean an absolute estate, the fee simple, and was doubtless intended to apply
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to persons having not an estate but a mere power to convey the whole interest, the fee simple. Then Kelly was neither an owner nor a person having such a power; he was a mere lessee for years having, it is true, an option to purchase the fee, which option, however, he had never elected to exercise, and under which he could only obtain a title upon the condition that he duly performed the covenants of the lease and paid his purchase money.
I have therefore no doubt that Chief Justice Burton was right in holding that Kelly was not an owner, and therefore not a person entitled to put the machinery of the Act in operation. The learned Chief Justice points out a test which may be applied to ascertain if Kelly was an “owner” within the Act; he asks could not the Canada Company, Kelly’s lessors, have initiated proceedings such as these, as owners? Beyond all doubt they could, having the fee. Then as there cannot be two owners in severalty of the same land is not this conclusive to show that Kelly was not one? I think this is unanswerable.
I cannot agree that the mere filing of the declaration, whether true or not, was sufficient to attach the jurisdiction conferred by the Act. There are good reasons for saying that no one who has not a substantial interest in the land should be able to take advantage of the provisions of the Act imposing as it does a burden on neighbouring proprietors. If the mere filing of the declaration was a sufficient answer to the objection that Kelly was not an owner, the declaration would be a mere senseless formality. What was intended was that no person other than one having the interest required by the Act should be able to put the proceedings in force. This appears from the Act itself. The provision added by section 1 of the amending Act (58 Vict. ch. 54), that in case of omission to file a decla-
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ration of ownership the judge may permit one to be filed at any stage of the proceedings “in case of ownership” (by which is meant if the party actually is the owner), is alone sufficient to show that in order that the Act should apply the fact of ownership is required. The case of Osgoode v. York is therefore a conclusive authority in favour of the appellant unless section 24 of 57 Vict. ch. 55 applies. That clause is as follows:
Every award made under the provisions of this Act shall after the lapse of the time hereinbefore limited for appeal to the judge, and after the determination of appeals, if any, by him where the award is affirmed, be valid and binding to all intents and purposes notwithstanding any defect in form or substance either in the award or in any of the proceedings relating to the works to be done thereunder taken under the provisions of this Act.
This, in my opinion, is entirely insufficient to cure an objection such as that which has been taken, not to the form or substance of the award but to the acquisition by the engineer of jurisdiction to make an award. The language is too plain to need any interpretation. The proceedings other than the award which are covered by this section are not the proceedings to be taken anterior to it for the purpose of putting in operation the machinery of the Act, but those “relating to the works to be done thereunder.” It is, I think, manifest, that this is not conclusive on the appellants.
Mr. Justice Moss has held that the appellants were bound by acquiescence or equitable estoppel. As to this I am of opinion that such a defence is not applicable in statutory proceedings of this kind. Moreover it is not shown that the parties acquiesced with their eyes open after having acquired knowledge of the defect in the initiatory proceedings, an element always essential to the principle of equitable estoppel. But there is not the slightest pretence that as regards
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the defendant municipality, the present appellant, there was in fact anything like acquiescence even if the doctrine could be applied in such a case as the present. The result is that we are bound by the decision in Osgoode v. York to hold that all the proceedings were void, and consequently that the appellants have come under no such liability as that sought to be enforced against them.
The appeal must be allowed with costs, and the judgment of Chief Justice Armour restored; the appellants must also have their costs in the Court of Appeal.
TASCHEREAU J. concurred.
GWYNNE J.—This is an action in which the Corporation of the Township of Logan as plaintiffs seek to recover from the defendants a sum of money claimed to be due to the plaintiffs as a statutory debt in virtue of the provisions of the Ontario Statute 57 Vict. ch. 55, intituled “An Act respecting Ditches and Watercourses,” passed in substitution for a previously existing statute of like title as amended by 51 Vict., ch. 35, and 52 Vict. ch. 49, and 53 Vict. ch. 68, which several statutes were repealed by 57 Vict. ch. 55. In an action of this nature it is, I think, the undoubted right of every person upon whom such a statutory debt is sought to be imposed, to insist that the plaintiff should establish by incontrovertible evidence that the provisions prescribed as necessary to the creation of the debt claimed have been complied with in the minutest particulars, and accordingly the only defence which is offered to this action is that the plaintiffs have failed to establish that such provisions of the statute have been complied with. It appears that prior to the passing of the Act 57 Vict., and sometime in the year 1893, a ditch or watercourse was at the
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instance of one Timothy Kelly commenced to be constructed from lot no. 35, in the 5th concession of the Township of Logan, across the town line between the Townships of McKillop and Logan, and across lots nos. 1, 2, 3, 4 and 5, in the 5th and 6th concessions of the Township of McKillop, under the supervision and direction of one McKenna, a P.L.S., who was then engineer of the said Township of Logan. Sometime prior to the 28th day of August, 1894, but when in particular does not appear, McKenna ceased to fill that office. Upon that day the Corporation of the Township of Logan passed a by-law whereby one John Roger, P.L.S., was appointed “engineer of the said township under the provisions of the Ditches and Watercourses Act.” The ditch so commenced to be constructed was proceeded with in pursuance of an award assumed to have been made by McKenna, as engineer of the Township of Logan, under the provisions of the Ditches and Watercourses Act then in existence, but the award was not produced. When the ditch so constructed was completed or what were its dimensions as designed and as constructed does not appear; all that we know upon this subject is that Mr. Roger testifies that he first saw the ditch in July, 1894, and he could not say whether it was then completed or not for that there was no bench mark to go by, but he says that in October of that year after he was appointed engineer of the township he considered that if it had been completed it must have fallen in and for that reason he, of his own motion, caused it to be cleaned out, and when such cleaning out work was done he says that the ditch was put into complete order. The lots nos. 2 and 3 and the east half of lot no. 4, in the 5th concession of McKillop across which the McKenna ditch was constructed was the property of one Timothy T. Coleman who departed this life on
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the 29th July, 1893, having first duly made and published his last will in writing by which he devised all his property subject to the payment of his debts unto his wife and his sons T.F. Coleman and E.C. Coleman (whom he also made executrix and executors of his will) in trust to hold the same upon certain trusts in his will stated. The length of the McKenna ditch across lots 2 and 3 and the east half of lot 4, in the 5th concession of McKillop was 201 7/10 rods, and just one-third of the whole length of the ditch, and the cost of its construction across these lots to the Coleman estate apart from the cleaning out work done in October, 1894, under the order of Mr. Roger, was upwards of $230, and the cost of such cleaning out work $40, making in the whole upwards of $270. Now the statute in sections from 7 to 15, both inclusive, prescribes the manner in which alone the powers conferred by the Act for the “construction” of a ditch (which the interpretation clause defines to be “the original opening or making of a ditch by artificial means”) shall be brought into operation and who are the persons competent to invoke such provisions, and from these, it plainly appears that, with the exception of municipalities, it is only an owner of land who can invoke and bring into action those powers which when exercised under the provisions of the Act have the effect of imposing a burthen upon other lands and the present and future owners of such other lands. Sections 7 and 8 are very precise upon this point, as indeed also are sections 13, 14 and 16. Then sections 16 to 20, inclusive, prescribe the proceedings to be taken by the engineer (when his services are duly called into action by compliance with the previous provisions of the Act in that behalf) for taking into consideration the subject matter of the requisition by which his services are invoked, and for making an
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award thereon and for filing the same and for the service thereof upon the parties affected thereby.
Sections 36 enacts that
Any owner, party to the award whose lands are affected by a ditch whether constructed under this Act or any other Act respecting ditches and watercourses may at any time after the expiration of two years from the completion of the construction thereof take proceedings for the reconsideration of the agreement or award under which it was constructed, and in every such case he shall take the same proceedings and in the same form and manner as are hereinbefore provided in the case of the “construction of a ditch.”
Now, Timothy Kelly, who was a party to the McKenna award and the one at whose instance the proceedings in which it was made were taken, and because as he says, of the McKenna ditch seeming to him not to work satisfactorily in so far as the north half of lot 35 in the 5th concession of Logan was concerned, did upon the 11th of June, 1895, make and file a declaration of ownership wherein he declared that he was the owner in fee simple of the north half of the said lot, and upon the same 11th of June he wrote several notices in the form produced and filed as exhibit three, which notices in the view which I take may be admitted to have been respectively duly addressed to and received by the several persons who were owners or occupants of the several lots mentioned in the McKenna award and across or upon which the McKenna ditch was constructed. These notices so addressed severally commenced as follows:
Sir,—I am, within the meaning of “the Ditches and Watercourses Act, 1894,” the owner of the north half of lot no. 35, in the 5th concession of the Township of Logan, and as such I require to reconsider an award drain made under the provisions of the said Act for the draining of my said land.
This requisition was transmitted by the clerk of the Township of Logan to and was received, by Mr. Roger, the engineer of that township, and it consti-
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tuted his sole authority, if any he had, to act thereunder, and notwithstanding that this requisition called merely for a reconsideration of the McKenna award, the engineer proceeded, as appears upon the face of his award, as if he was proceeding under the Act for the original construction of a ditch. True it is that the section 36 requires the owner of land who takes proceedings for the reconsideration of an award under which a ditch has been previously constructed to take the same proceedings, and in the same manner and form as prescribed in the Act for the original construction of a ditch, but it by no means says that upon a requisition for reconsideration of an award under which a ditch has been constructed the engineer may make an award as if he was acting under a requisition calling for the “construction” of a ditch where as yet there was none constructed. Now the engineer by his award assumed to direct that Timothy Kelly, the person making the requisition for reconsideration of the previous (McKenna) award under which alone the engineer was acting, “should make, complete and maintain” a ditch upon the north half of lot 35, in the 5th concession of Logan, between certain specified points and should furnish therefor 250 feet of 5 inch tile, the cost of all which the engineer estimated at $10; this work either wholly or in part was within the limits of the McKenna ditch. Then where the McKenna ditch crossed the town line between the townships of Logan and McKillop, from the north half of lot 35 in the 5th concession of Logan to lot no. 1 in the 5th concession of McKillop, the award assumed to direct that the corporations of said townships jointly should “make, complete and maintain” a ditch across the said town line at a cost estimated by the engineer at $8. The award in like manner assumed to direct that one Thomas Levy as
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owner of the north half of lot no. 1 in the 5th concession of McKillop should make, complete and maintain a ditch within certain specified points upon that lot at a cost estimated by the engineer at $12; all this work was also within the limits of the McKenna ditch. Then as to lots 2 and 3, and the east half of lot 4, in the 5th concession of McKillop, the award assumed to direct “Coleman Brothers” as owners of these lots to make, complete and maintain a ditch across them within certain specified points, also within the limits of the McKenna ditch, at a cost estimated by the engineer at $30. In like manner across the west of lot no. 4 in the said 5th concession of McKillop, the award assumed to direct one Michael Walsh as owner of such west lot to make, complete and maintain a ditch at a cost estimated by the engineer at $2; and so in like manner the award assumed to direct one Patrick Walsh as owner of lot 5 in the 5th concession of McKillop to make, complete and maintain a ditch on that lot within certain specified limits at a cost estimated by the engineer at $5. The McKenna ditch at this point entered the 6th concession of McKillop on lot no. 1, and continued across that lot and lots 2, 3, 4 and 5, in said 6th concession, and the award in like language as above, assumed to direct the several persons named therein as owners of said respective lots to make, complete and maintain a ditch across the said several lots within specified points therein respectively, at a cost estimated by the engineer as follows: On lot no. 1, at $1; on lot no. 2, at $2; on lot no. 3, at $3; on lot no. 4, at $1.50; and on lot no. 5, at $12. The whole of this work so directed to be done within the township of McKillop was directed to be done within the limits of and upon the McKenna ditch, and the total cost was estimated by the engineer at $89, including the work
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directed to be done by Kelly, on lot 35 in the 5th concession of Logan, at the estimated cost of $10. It may be that what the engineer has by his award ordered to be done might have been directed to be done under an award expressed to be made under a requisition for reconsideration of a previous award, and in such case the award might have been amended under the 22nd section of the Act, but the objection relied on upon this point is not that the work ordered to be done by the engineer’s award was not of a character which could have been ordered by an award made upon a requisition for reconsideration of a previous award, but that upon a requisition for reconsideration of a previous award no valid award could be made nor could any proceedings be taken for reconsideration of a previous award until after the expiration of two years from the completion of the ditch constructed under the previous award. That the parties in the Township of McKillop named in this award took no steps to comply with the directions in the award appears by the evidence of Kelly and by a letter addressed by him and sent to the engineer, Roger, in October, 1895, which is as follows:
LOGAN, October 10th.
Lot 35, in 5th concession.
SIR,—I hereby give you notice that the parties on the west end of the drain leading from me have done nothing at it yet, and as the time is up I want you to attend to it at once.
Yours truly,
TIMOTHY KELLY.
When Mr. Roger received this notice he had knowledge that the Coleman estate repudiated the validity of the award, and he had received one or more letters from that estate upon that subject, but such letters and all notices and papers which he ever had relating to the proceedings in the matter he says he destroyed
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when the time for appealing against his award had expired, with the exception of the requisition under which he acted. Upon receiving from Kelly the above notice of the 10th of October, he says that he went up to the ditch upon the lots 2 and 3, and east half of 4, in the 5th concession of McKillop, and found that no work had been commenced there, nor upon lot no. 1 in the said 5th concession, which was the only lot lying between the Coleman Trust estate and lot 35 in Logan, and he says he made no inspection to ascertain whether anything had been done below the east half of lot no. 4 in McKillop; he proceeded, he says, against the Coleman estate alone, and professing to act under section 28 of the statute he let to one Gaffney, at the sum of $360.38, the work on lots 2 and 3 and the east half of 4 in McKillop, which in his award he had estimated at $30, and subsequently he gave to Gaffney a certificate that he had completed the work so let to him and was entitled to receive from the Township of Logan the said sum of $360.38, together with $18 for engineer’s fees, which sum the said township in virtue of that certificate paid to Gaffney, and the township now brings this action to recover from the Township of McKillop the said sums amounting to $378.38 as a statutory debt due to the township of Logan under sections 29 and 30 of the Act. The Township of McKillop authorities not being able to understand how they could collect $378.38 as an assessment upon lands, the whole of which was rented at $200 per annum, and being notified by the Coleman estate trustees that they regarded the award as wholly invalid, and that they would resist any attempt to levy such sum from the estate, took the advice of their solicitor, who advised them not to pay unless compelled by judgment in an action. Accordingly the present action has been brought in the
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course of which it was urged, as part of the contention of the Coleman trust estate, that the work ordered by the Roger award was absolutely of no benefit whatever to their lands in McKillop, and that in point of fact the sole object and intent of that work was for the benefit of lot 35, in the 5th concession of Logan, and it may be of other lands in that township. That contention would, it may be admitted, have been a good objection to the award upon an appeal under the 22nd section of the statute, and the Coleman trust estate could have obtained adequate and perfect relief in so far as that objection is concerned under the provisions of that section, but no such contention can be entertained as a defence in the present action.
Then again, it was urged as another part of the Coleman trust estate contention that the letting by the engineer at the sum of $360.38, work upon the lots 2 and 3, and the east half of 4, in the 5th concession of McKillop, estimated by him at $30, was an arbitrary, collusive and illegal proceeding, but if any actionable wrong was committed by the engineer by his letting the work as he did, upon which I express no opinion, that was a wrong against the Coleman trust estate and the proper subject of an action at the suit of such estate, but cannot I think be entertained as a defence to the present action.
The action was tried by the learned Chief Justice of the Queen’s Bench Division of the High Court of Justice for Ontario, who upon the authority of Osgoode v. York in this court, held that the whole of the proceedings taken by Timothy Kelly were illegal and void for that he was not the owner of the north half of lot 35, in the 5th concession of Logan, and he was therefore incompetent to initiate proceedings under the statute, and that for such his
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incompetency all the proceedings taken and the award made therein were wholly null and void. That he was not the owner of that lot conclusively appeared by his own title deed produced from his possession for the purpose of establishing the truth of the averment necessarily inserted in the plaintiff’s statement of claim that he, as owner of the said lot, had instituted the proceedings in which the award was made. This title deed was merely an indenture of lease dated the 1st of February, 1895, for a term of seven years at a certain rent thereby reserved, and executed by the Canada Company, the owners in fee of the said lot by the said indenture of lease demised. This indenture of lease was subject to a proviso for re‑entry by the lessors upon breach by the lessee of any of his covenants therein contained which covenants are of such a special character; so unequivocally affirmatory of the fact that the lessors are the owners of the lot so demised, that it is difficult to conceive how Kelly could have supposed himself to be (as in the declaration of ownership filed by him is alleged) owner of the lot. If the statute required a declaration of ownership to be filed by way of some moral assurance and security to the parties to be affected by the proceedings that they should not be troubled by an incompetent person assuming to initiate proceedings under the Act this case shews how inadequate such contemplated security is. The Court of Appeal for Ontario reversed the judgment of the learned trial judge for the reasons, first, that in the opinion of some of the learned judges in appeal clause seven of the Act of 1894, which was first enacted after the decision in Osgoode v. York, dispensed with the necessity of the party initiating proceedings being an owner or that the filing of the declaration of ownership required by that section was to be taken as conclusive evidence of the party filing
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such declaration being the owner of the land as therein alleged; and secondly, that after the expiration of time limited by the Act for appealing against an award all objections are removed by section 24 of the Act. That the filing of a declaration of ownership cannot be held to be substituted for the fact of ownership by a party initiating proceedings under the Act or accepted as conclusive evidence of ownership by such party not only appears from sections 7 to 15 inclusive, in the former of which it is naturally enacted that it is an owner alone who can before instituting proceedings file the declaration of ownership therein required, but ch. 54 of 58 Vict. passed for amending sec. 7 of 57 Vict. ch. 55, is conclusive upon the point for this Act enacts as a proviso to the sec. 7, that in case of omission by an owner through inadvertence or mistake to file his declaration of ownership before instituting his proceedings under the Act the judge may permit the certificate to be filed at any stage of the proceedings (instituted by the owner) provided that the ownership in fact existed at the time of the commencement of the proceedings. There can therefore, I think, be no doubt that the Act is peremptory that no one but an owner of land is competent to initiate proceedings under the Act, and that no award made in proceedings instituted by a person who was not an owner of land is of any validity whatever. For this reason and for the reason also that the plaintiffs have failed to shew that two years had elapsed subsequently to the completion of the work ordered by the McKenna award before the institution by Kelly of his proceedings for reconsideration of that award, but that the contrary sufficiently appears in the evidence, I am of opinion that the appeal must be allowed with costs and the judgment of Chief Justice Armour dismissing the plaintiff’s action, restored.
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The 24th section of the Act has application only to awards and proceedings taken “under the provisions of the Act” and has no application therefore to awards made in proceedings taken by a person not competent under the provisions of the Act to take such proceedings, or to proceedings taken for a purpose at a time when for such purpose the proceedings are not warranted by the provisions of the Act.
KING and GIROUARD JJ. concurred.
Appeal allowed with costs.
Solicitor for the appellant: F. Holmested.
Solicitors for the respondents: Dent & Thompson.
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