Supreme Court of Canada
Orpen v. Roberts, [1925] S.C.R. 364
Date: 1925-02-03
Isabella Orpen (Plaintiff) Appellant;
and
Herbert C. Roberts and Others (Defendants) Respondents.
1924: December 9; 1925: February 3.
ON APPEAL FROM THE APPELLATE DIVISION OF THE SUPREME COURT OF ONTARIO.
Appeal—Amount in controversy—Loss as the effect of judgment—Municipal Institutions Act, R.S.O. [1914] c. 192, s. 406 (10)—Municipal bylaw—Street declared residential—Distance from street line for buildings—Frontage—Landowner affected by building—Right of action.
The amount in controversy necessary to give the Supreme Court of Canada jurisdiction to entertain an appeal may be determined by the pecuniary loss that would be suffered as a result of the judgment appealed from.
Sec. 406 (10) of The Municipal Institutions Act (R.S.O. [1914] c. 192) authorizes the council of a city or town to pass a by-law declaring any highway or part of a highway to be a residential street and prescribing the distance from the street line in front at which buildings can be erected. No common law right of action is given to a person prejudicially affected by the erection of a building in contravention of such a by-law and sec. 501 provides that in case of contravention it may be restrained by action at the instance of the corporation. The city of Toronto passed such a by-law in respect of lands front-
[Page 365]
ing on the north side of Carlton street between Sherbourne and Homewood Av. R. proposed to erect an apartment house on the corner of Carlton street and Homewood Av. at a less distance from the street line than that prescribed by the by-law and fronting on Homewood Av. and a landowner on the north side of Carlton street who would be prejudicially affected by its erection and claimed that it would be a contravention of the by-law brought action for an injunction to restrain R. from building it.
Held, affirming the judgment of the Appellate Division (26 Ont. W.N. 401) that the action could not be maintained; it was no part of the scheme of the legislation to create, for the benefit of individuals, rights enforceable by action; remedies were provided by the Act but none under the general law; and the aggrieved landowner can only resort to those so provided.
APPEAL from a decision of the Appellate Division of the Supreme Court of Ontario affirming the judgment at the trial which dismissed the appellant’s action.
The facts of the case are sufficiently stated in the above head-note.
A motion was made to affirm the jurisdiction of the court to entertain the appeal which was maintained for the following reasons.
THE REGISTRAR.—This is a motion to affirm jurisdiction heard by me in Toronto some weeks ago. The facts as disclosed by the material filed are as follows:
An action was brought by the plaintiff, Orpen, to restrain the defendant, Roberts, from proceeding with the erection of an apartment house on Lot 84, Plan D, 30 Homewood avenue, in the city of Toronto, within less than 25 feet of the northern limit of Carlton street and to prohibit the city of Toronto from issuing any permit to Roberts authorizing him to proceed with the erection of said building. The motion for injunction was by consent of all parties turned into a motion for judgment on the affidavits filed and judgment was pronounced by Mr. Justice Lennox refusing the motion and dismissing the action and his judgment was affirmed by the Appellate Division. The plaintiff has launched an appeal to the Supreme Court of Canada, deposited the necessary security and now moves to affirm the jurisdiction of the court.
The basis of the action is a by-law of the city of Toronto No. 7197, which provides as follows:
[Page 366]
No building shall hereafter be built or erected on the lands fronting on the north side of Carlton street, between Sherbourne street and Homewood avenue, at a point closer to the line of the street than the distance of 25 feet.
This by-law was based upon section 406, paragraph 10, Revised Statutes of Ontario, c. 192, which provides as follows:
By-laws may be passed by the councils of cities and towns * * * for declaring any highway or part of a highway to be a residential street and for prescribing the distance from the line of the street in front of it at which no building on a residential street may be erected or placed.
The land in question is a corner lot at the junction of Homewood avenue and Carlton street and the plaintiff’s house is also a corner lot at the junction of Carlton and Sherbourne streets. The proceedings were amended by insertion of the words, after the plaintiff’s name:
Suing upon her own behalf and on behalf of all other interested land owners.
The first answer to the plaintiff’s action is that it was not intended to have the front entrance of the proposed building on Carlton street but Homewood avenue and therefore he is not precluded from building within the 25 ft. area and the jurisprudence of the Ontario courts supports this contention. In re Dinnick and McCallum.
The second answer is that a private person cannot maintain an action for the violation of a municipal ordinance such as this. MacKenzie v. Toronto.
These decisions, however, do not in any way preclude the plaintiff from appealing from the present judgment to the Supreme Court of Canada. The only question involved on the motion before me is: Do the facts of this case entitle the plaintiff to an appeal under the Supreme Court Act? The judgment is a final one and is a judgment of the highest court of final resort in the province. But does the amount or value of the matter in controversy in the appeal exceed the sum of $2,000 as required by the new section 39? The defendant’s counsel naturally relies strongly upon a line of decisions of this court from Toussignant v. Nicolet, onward. But all these cases preceded the amendment of the Supreme Court Act made by 3-4 Geo. V, c. 51, which provides by sec. 49a:
[Page 367]
Where the right to appeal depends upon the amount or value of the matter in controversy and no specific sum is claimed, the amount or value of the matter in controversy may be proved by affidavit or affidavits.
That section although repealed in the amendment of 10-11 Geo. V, c. 32 was replaced by a similar sec. (40) and the provision is in force to-day. I am disposed to hold that in all cases of this character where no specific amount is claimed the principle applied by Mr. Justice Idington in Chamberlain Metal Weather Strip Co. v. Peace, June 8,1905, is applicable and that the damages which the appellant would suffer by the granting or refusing of the injunction, although such damage at the time had not yet been sustained, can be proved by affidavit and if so established the court has jurisdiction.
The order made by me, however, will not prejudice the defendant as the court will still have the power to quash the appeal for want of jurisdiction when the case comes on to be heard on the merits, if of the opinion that there is no jurisdiction.
In short I would hold that in all quia timet actions relief can be given in this court, although the damages have not yet been incurred, if in consequence of the judgment in appeal they would amount to more than $2,000.
An appeal taken from the order made by the registrar was dismissed. The court said the subject matter of the appeal is the right of the respondent to build on the street line on Carlton street in the city of Toronto. “The amount or value of the matter in controversy” (section 40) is the loss which the granting or refusal of that right would entail. The evidence sufficiently shows that the loss—and therefore the amount or value in controversy—exceeds $2,000.
H.J. Scott K.C. for the appellant.
Robertson K.C. and Barlow for the respondent Roberts.
W.G. Angus for the other respondents.
The judgment of the majority of the court (the Chief Justice and Duff, Mignault, Newcombe and Rinfret JJ.) was delivered by
DUFF J.—In March, 1924, the respondent applied to the municipality of Toronto for a permit for the erection of an apartment house on lots owned by him situated on Home-
[Page 368]
wood avenue at the corner of Carlton street, the situs of the building to be erected being in part upon a strip between the northern boundary of Carlton St. and a building line, twenty-five feet north of that, laid down by a by-law enacted under the authority of sec. 406 (10) of the Municipal Institutions Act, R.S.O. [1914] c. 192. The appellant, Mrs. Orpen, owns a dwelling house on the north side of Carlton street, a short distance from the site of the apartment house, which has since been erected; and while the application of the respondent was before the municipality she applied for an injunction to restrain him from proceeding with his building, and the municipality from granting a permit. The motion was by consent turned into a motion for judgment, and Lennox J., who heard it, dismissed the action. An appeal from his judgment was in turn dismissed by the Appellate Division of the Supreme Court of Ontario, and the appellant now appeals from the judgment of that court.
The enactment under the authority of which the by-law was passed (c. 192, R.S.O. [1914], sec. 406 (10), now 12-13 Geo. V, c. 72), is thus expressed:
406. By-laws may be passed by the councils of cities and towns.
10. For declaring any highway or part of a highway to be a residential street, and for prescribing the distance from the line of the street in front of it at which no building on a residential street may be erected or placed.
(a) It shall not be necessary that the distance shall be the same on all parts of the same street.
(b) The by-law shall not be passed except by a vote of two-thirds of all the members of the council.
And the by-law itself is in these words:
No building shall hereafter be built or erected on the lands fronting on the north side of Carlton street, between Sherbourne street and Homewood avenue, at a point closer to the line of the street than the distance of twenty-five feet.
The Appellate Division, we are informed, dismissed the appellant’s action on the ground that she had no status to complain of the respondent’s infraction of the by-law. The learned trial judge held that the by-law must be construed by reference to the statutory enactment under the authority of which it was passed, and that, so construed, the respondent’s building as he proposed to place, and ultimately did place it, was not obnoxious to its provisions.
The respondent’s building, it appears, is situated upon lots which would be commonly described as “fronting”
[Page 369]
on Homewood avenue, and the principal entrance of the building is on that street, and in the opinion of the learned trial judge he was bound by the decision of the Appellate Division in Dinnick v. McCallum, to hold that the proposed building would not “front” on Carlton street and would not be erected on lands “fronting” on that street. and consequently that no infringement of the by-law was contemplated.
Since the view upon which, as we are informed, the Appellate Division proceeded in this case can be supported upon sound and satisfactory grounds, it is unnecessary to consider the decision of the Appellate Division in Dinnick v. McCallum7 and no opinion is expressed concerning that decision. For the purposes of this judgment it will be assumed that there was an infraction of the by-law. It is not disputed that the existence of the respondent’s apartment house, situated as it is upon the twenty-five foot strip bordering on Carlton street, does prejudicially affect the appellant in respect of the amenities and the value of her property; and the question to be determined, therefore, is whether, being so specially damnified, she has a title to judicial relief.
As a general rule, where something is done to the general damage of the public in respect of which an indictment will lie, a private individual who, in consequence, suffers special damage has a right of action; though it appears that, even where the duty violated is a duty arising under the common law, if it is one existing in the interest of a class of the public only an action will not lie if the person specially damnified is outside that class. Bromley v. Mercer. Where the offence consists in the non-performance of a duty imposed by statute or the non‑observance of a prohibition created by statute, then the rule, based upon the Statute of Westminster, 13 Edw. V, c. 50, is, as stated in Comyn’s Digest (“Action upon Statute” (F)):
In every case where a statute enacts or prohibits a thing for the benefit of a person he shall have a remedy upon the same statute for the thing enacted for his advantage or for the recompense of a wrong done to him contrary to the law.
Obviously, this leaves it to be determined in each case whether the enactment relied upon was passed for the bene-
[Page 370]
fit of the person asserting the right to reparation or other relief; and, assuming that question to be answered in the affirmative, there may still be the general principle to be considered that, to quote Lord Selborne in Brain v. Thomas:
Where a statute creates an offence, and defines particular remedies against the person committing that offence, prima facie the party injured can avail himself of the remedies so defined, and no other.
But the object and provisions of the statute as a whole must be examined with a view to determining whether it is a part of the scheme of the legislation to create, for the benefit of individuals, rights enforceable by action; or whether the remedies provided by the statute are intended to be the sole remedies available by way of guarantees to the public for the observance of the statutory duty, or by way of compensation to individuals who have suffered by reason of the non-performance of that duty. Atkinson v. Newcastle Waterworks Company.
In substance, the proposition advanced by the appellant is that any proprietor, whose property might suffer in value by reason of the failure of some other proprietor to observe the building restrictions established by a by-law promulgated under the authority of this enactment, has a right to invoke the jurisdiction of the courts to prevent by injunction the obnoxious act and to recover damages in respect of any loss actually suffered in consequence of it if wholly or partly completed. In effect, if this contention be sound, such a by-law creates in favour of any proprietor who may be prejudicially affected in his property by an infringement of any of the prohibitions of such a by-law, a negative easement (enforceable in the same manner as a restrictive covenant) over the property within the area where the by-law operates.
It is legitimate to observe that this construction if it were to prevail, would be an unfortunate construction. As Meredith C.J. said, in Tomkins v. The Brockville Rink Company, when one considers the different kinds of acts and conduct which municipal councils in Ontario are by statute permitted to prohibit or to regulate, and the multiplicity
[Page 371]
of duties they have authority to impose upon property owners and others within their jurisdiction, one is rather
startled by the proposition that in each case a duty is imposed for the failure to perform which an action lies by one who is injured owing to the non-performance of it;
and it seems highly unlikely, as Farwell J., said in Mullis v. Hubbard, that the legislature contemplated as the result of this legislation that “the numerous individuals” in the vicinity of a residential area, should be entitled to
bring their private actions against a man who had built a few feet in front of the line allowed,
even though the municipal authorities themselves should not consider it a proper case for interference.
The question to be decided might possibly have presented greater difficulties had it not been for the history of the enactment and the course of decision upon it and upon analogous provisions of the Act. The statute which was the parent of the legislation now under discussion was first passed in the year 1904; but before examining the language of the enactment of that year, it will be advantageous first to consider the decision in Tompkins Case already referred to, and the judgment of Meredith C.J. which was delivered in the year 1899. The action was brought by a ratepayer, who complained that the defendant company, in violation of a fire limits by-law, was erecting a wooden building in the vicinity of his own property, alleging that, in consequence of this breach of the by-law, the premiums payable for the insurance of his own buildings would be increased, and the value of his property diminished. The action was brought to restrain the defendant from proceeding with its building, and for damages. In a judgment which contains an elaborate review of the pertinent decisions, Meredith C.J. held that the authority conferred upon municipalities to establish fire limits and to regulate the construction of buildings within those limits was an authority given in the interests of the public generally, and that the sole remedy in respect of any infraction of a by-law passed under it lay in proceedings for the enforcement of the penalties prescribed by the by-law under the authority of the statute, including, if the by-law so ordained, the liability to have the building removed.
[Page 372]
It was, as already mentioned, in 1904 that the legislature, in chapter 22 of the statutes of that year (by sec. 19) first dealt with the subject of establishing residential areas and regulating the construction of buildings in those areas. By the same statute, sec. 20, the legislature dealt also with the subject that had been discussed in Tompkins’ Case13 and, in cases of infringement of prohibitions of the kind considered in that case, it was provided that either the municipal corporation or any ratepayer might bring an action, and jurisdiction was conferred upon the High Court to grant an injunction in such a proceeding. It is not immaterial to notice this section, because it seems to indicate that the legislature was legislating with a view to the state of the law ascertained by Tompkins’ Case 13 as touching the effect of fire limits by-laws.
Section 19 was in these words:
19. The Consolidated Municipal Act, 1903, is amended by inserting therein the following as section 541a:—
541a. The councils of cities and towns are authorized and empowered by a vote of two‑thirds of the whole council to pass and enforce such by-law as they may deem expedient;
(a) To regulate and limit the distance from the line of the street in front thereof at which buildings on residential streets may be built; such distance may be varied upon different streets or in different parts of the same street.
(b) And in the case of cities only, to prevent, regulate and control the location, erection and use of buildings for laundries, butcher shops, stores and manufactories.
The location, erection, construction or use of any buildings in contravention of any such by-law may, in addition to any other remedy provided by law, be restrained by action at the instance of the municipality passing such by-law;
Provided that this section shall not apply to any buildings now erected or used for any of the purposes aforesaid so long as they continue to be used as at present.
In the consolidation of 1913, subsection (a) of this section appears in altered form, as quoted above, as subsection (10) of sec. 406, ch. 43, which confers a variety of powers on the councils of cities and towns; while that part of the section which gave a right of action, at the instance of the municipality, for restraining breaches of by-laws passed under the authority of it, is replaced by sec. 501, which is in these words:
501. Where a building is erected or used, or land is used in contravention of a by-law passed under the authority of this Act in addition to any
[Page 373]
other remedy provided by this Act and to any penalty imposed by the by-law, such contravention may be restrained by action at the instance of the corporation.
Section 20 of the Act of 1904, which, as already mentioned, gave a special right of action in respect of the contravention of fire limits by-laws to the corporation and to any ratepayer, was not reproduced in the consolidation of 1913 and, indeed, was expressly repealed. The result, therefore, of the changes effected by the consolidation of 1913 was that by virtue of section 501, which appears in Part 22 of the statute under the heading of “Penalties and Enforcements of By-laws,” contraventions of by-laws regulating the erection or the use of buildings or land might be restrained by action at the suit of the corporation, while the right of action given by sec. 20 of the Act of 1904 to a ratepayer in respect of violations of the particular class of by-laws with which it dealt (fire limits by-laws) was abrogated.
Section 501, it will have been observed, carefully preserves any other remedy provided by the Act and the liability to any penalty imposed by the by-law. But there is no mention of remedies under the general law; and it seems to proceed upon the assumption that in respect of such contraventions there could be no remedy except such as is given or authorized by the Act. This view is fortified by the inference to be drawn from the contrast between the language of sec. 501 and that of sec. 19 of the Act of 1904, which explicitly preserved “any other remedy provided by law.” The change in language is striking, and appears to be most readily explained on the theory that in 1913 the legislature accepted and proceeded upon the opinion to which Meredith C.J. had given effect in Tompkins’ Case, namely, that, according to the scheme of the Act, as regards by-laws of the character to which sec. 501 applies, the remedial measures available to persons affected by a breach of them are those provided or authorized by the Act, and those alone.
This view of the section seems to have commended itself to Middleton J., when giving judgment in Mackenzie v. City of Toronto, although, as a decision on the point was not strictly required, he expressed no decided opinion
[Page 374]
concerning it; and to Orde J. in Preston v. Hilton. It was after these judgments had been delivered and published that the Municipal Institutions Act of Ontario was again consolidated in 1922 as chapter 72 of the statutes of that year, and sec. 501 was re-enacted without change.
Although by sec. 20 of the Interpretation Act, R.S.O. [1914], the legislature is not to be presumed by reason merely of having re-enacted a statutory provision without changing its language to have adopted a previous judicial construction of that language, nevertheless, the history of the legislation, when read in light of the course of judicial decision and opinion touching the effect of it, may, independently of the intrinsic weight of such decisions and opinions, afford convincing evidence of the intention of the legislature. There appears to be little room for doubt that in this instance the Appellate Division has accurately interpreted that intention.
The appeal should accordingly be dismissed with costs.
IDINGTON J.—This appeal arises out of an action brought by the appellant, as owner of a dwelling house fronting upon the north side of that part of Carlton street in Toronto lying between Sherbourne street and Homewood avenue complaining that the respondent Roberts, owning a block of land on the northeast corner of said Carlton street and Homewood avenue (in breach of the by-law of said city which I am about to present), proposed erecting an apartment house on said corner which would extend to a line ten feet from, instead of twenty‑five feet from, Carlton street, as provided by said by-law, and thus would be detrimental to the appellant and her said dwelling house, and seeking an injunction restraining said respondent Roberts from so building in breach of said by-law and the city architect from granting a permit therefor.
The said by-law was passed in November, 1914, and provides as follows:—
Whereas by The Municipal Act, the councils of cities are authorized and empowered to pass by-laws for prescribing the distance from the line of the street in front of it at which no building on residential streets may be erected or placed;
Therefore the Council of the Corporation of the city of Toronto, by a vote of two-thirds of all the members of the council enact as follows:
[Page 375]
I
The north side of Carlton street, between Sherbourne street and Homewood avenue, is hereby declared to be a residential street.
II
No building shall hereafter be built or erected on the lands fronting on the north side of Carlton street, between Sherbourne street and Homewood avenlue, at a point closer to the line of the street than the distance of 25 feet.
III
Any person convicted of a breach of any of the provisions of this by-law shall forfeit and pay, at the discretion of the convicting magistrate, a penalty not exceeding (exclusive of costs), the sum of $50 for each offence.
The council of the said city had (under the Municipal Act of R.S.O. [1914], section 406 (10)) power to pass said by-law and no question is raised herein as to that, though much has been said as to the meaning of it in relation to respondents’ property with which I cannot agree.
The sole question that has troubled me much is whether or not the appellant has in law the right to claim an injunction forbidding a breach of the by-law.
The penalty imposed therefor is only fifty dollars which, as regards the parties hereto, seems so trifling that I am unable to see therein any effective restraint.
Section 501 of said Municipal Act, however, provides as follows:—
501. Where a building is erected or used or land is used in contravention of a by-law passed under the authority of this Act, in addition to any other remedy provided by this Act, and to any penalty imposed by the by-law, such contravention may be restrained by action at the instance of the corporation.
There are many actions which have been successfully maintained though founded, in the last analysis, upon what were merely by-laws provided for by statute and well founded thereon, but few, if any, upon our Municipal Acts.
This is one of the many cases in which I have had to turn to the judgment of Lord Cairns in the case of Atkinson v. Newcastle and Gateshead Waterworks Co., where he indicated that the right to a remedy, claimed to be founded upon a statute, must to a great extent depend on the purview of the legislature.
Applying that to the legislation herein in question, the said section I have just quoted seems to me to render it
[Page 376]
impossible to properly hold that the legislature ever intended that the appellant should have the right of action she claims herein.
If that conclusion, coupled with the apparent refusal herein of the city to assist appellant in maintaining its bylaw, renders the enactment of such a by-law rather farcical I cannot help it.
There are so many cases in which private individuals have unsuccessfully tried to found, upon mere municipal by-laws, actions seeking the like relief the appellant asks herein, that I do not propose to review them here; for the benefit of those seeking their law bearing upon the question raised, I may refer to the following, and the cases respectively referred to in the several judgments appearing therein. See Tompkins v. Brockville Rink Co.; Preston v. Hilton; Johnston v. Consumers Gas Co.; McKenzie v. City of Toronto; Mullis v. Hubbard.
For the foregoing reasons I am of the opinion that this appeal should be dismissed with costs to the respondent Roberts. I do not think the other respondents, under such circumstances, entitled to costs for if the city intended to abandon the by-law it should, I respectfully submit, have said so at the outset.
Appeal dismissed with costs.
Solicitors for the appellant: Millar, Ferguson & Hunter.
Solicitors for the respondent Roberts: Jones & Barlow.
Solicitor for other respondents: William Johnston.
Email this Content