Supreme Court of Canada
Rural Municipality of Portage la Prairie v. Rural Municipality of Cartier, [1925] S.C.R. 691
Date: 1925-06-04
Rural Municipality of Portage La Prairie (Plaintiff) Appellant;
and
Rural Municipality of Cartier (Defendant) Respondent
1925: May 14, 15; 1925: June 4.
Present: Anglin C.J.C. and Duff, Mignault, Newcombe and Rinfret JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR MANITOBA
Municipal corporation—Boundary river—Bridge—Costs—Agreement—Bylaw—The Municipal Act, R.S.M. 1913, c. 133, ss. 667 and 668
In order to give jurisdiction to the Municipal Commissioner, under sections 667 and 668 of the Municipal Act, to apportion the costs of building a bridge over a river or stream forming the boundary between two municipalities, the latter must previously have agreed to construct the bridge.
The power of a municipality to contract with another municipality to build by joint action such a bridge must be exercised by by-law.
Judgment of the Court of Appeal (34 Man. L.R. 405) affirmed.
APPEAL from the decision of the Court of Appeal for Manitoba, reversing the judgment of trial judge; Mathers C.J.K.B., and dismissing the appellant's action.
This is an action by the rural municipality of Portage la Prairie against the rural municipality of Cartier upon an award made by the Municipal Commissioner under sections 667 and 668 of The Municipal Act for half the cost of construction of a permanent bridge across the Assiniboine River which forms the boundary between these two municipalities. The respondent's defence is that the bridge was constructed by the appellant alone and on its own behalf without any agreement or concurrence on the part of the respondent. The appellant answered this defence by stating that the respondent by its course of conduct estopped itself from setting up as a defence the absence of a by-law authorizing the building of this bridge jointly with the appellant.
F. G. Taylor K.C. for the appellant.
Ward Hollands K.C. for the respondent.
[Page 692]
The judgment of the court was delivered by
Mignault J.—The point to be decided in this case is whether the rural municipality of Cartier is bound to pay one-half of the cost of building a bridge over the Assiniboine River between the two municipalities. The appellant decided to build this bridge and gave the contracts for the work without any agreement by the respondent to share in the cost. It appears that Cartier at one time expressed its willingness to contribute to the construction in respect of the acreage benefited by the bridge, but nothing came of this tentative offer, and finally, but after the bridge had been completed, the matter was brought before the municipal commissioner, who, purporting to act under the authority of s. 668 of The Municipal Act (R.S.M., 1913, c. 133), as amended, decided that the respondent should pay one half of the sum expended by the appellant. The present action claims payment of certain accrued instalments under the award, and the respondent disputes its liability, alleging that the municipal commissioner acted without jurisdiction.
Section 667 of The Municipal Act, when a river or stream forms the boundary or part of the boundary between two or more municipalities, empowers the councils of these municipalities to construct a bridge or bridges across such river or stream. By s. 668, it is enacted that if the municipalities are unable mutually to agree as to their joint action in constructing, maintaining or keeping the bridge in repair, or as to the share of the expense of maintenance or repair to be borne by each, the Municipal Commissioner, on application to him by one or more of the municipalities, may determine all and singular the said matters and the amount which each municipality shall be required to expend. I think these two sections should be read together.
In order to give jurisdiction to the Municipal Commissioner to apportion the cost, the two municipalities must have agreed to construct the bridge. This essential condition is wanting here, for the council of the respondent never so agreed. Section 667 assumes that both the municipalities have exercised the power it confers to construct the bridge, but in this case the bridge was built by the appellant alone without the concurrence of the respondent.
[Page 693]
It is also objected by the respondent that any consent by it to the construction of the bridge, in other words, any exercise of the power conferred by s. 667, could only be by by-law. This is in conformity with s. 327 of The Municipal Act, and the objection therefore seems well founded. There is an abundance of authority on this point.
It is, however, contended, and this the learned Chief Justice of the King's Bench considered the crucial point in the case, that the respondent adopted a course which was consistent only with the existence of liability for its proper proportion of the cost of the bridge. When threatened with litigation, it is said, it sent representatives to the Municipal Commissioner to request him to fix the amount the respondent should pay. It appears, as well by the statement of claim as by the recitals of the award, that it was the appellant that applied to the Municipal Commissioner to determine the amount that each municipality should expend in connection with the construction of the bridge. Certainly sending its representatives before the Municipal Commissioner under these circumstances could not amount to an assumption of liability by the respondent for a work undertaken entirely by the appellant, the more so as any agreement of the respondent to share in the cost of the bridge could only be expressed by a by-law. I am unable, therefore, to find in the circumstances of the case any foundation for the contention that the respondent is now estopped from disputing a liability it never assumed.
The appeal should be dismissed with costs.
Appeal dismissed with costs.
Solicitors for the appellant: Taylor & Colwill.
Solicitors for the respondent: Bonnar, Hollands & Philp.
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