Village of Long Branch v. Hogle, [1948] SCR 557

Supreme Court of Canada

Village of Long Branch v. Hogle, [1948] S.C.R. 557

Date: 1948-04-27

The Corporation of the Village of Long Branch (Respondent) Appellant;

and

Glencoe Harvey Hogle and Irene Hogle (Applicants) Respondents.

1948: April 1, 27.

Present: Rinfret, C.J. and Kerwin, Taschereau, Rand and Kellock JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Municipal Corporations—By-Laws—Approval of Municipal Board—By-Law illegal in part—The Municipal Act, R.S.O., 1937, c. 266, s. 406, as re-enacted by 1941, c. 35, s. 13, and amended by 1943, c. 16, s. 11 and 1946, c. 60, s. 50. “Repealed and amended” s. 406(4).

The appellant corporation passed a by-law approved by the Municipal Board pursuant to the provisions of s. 406 of the Municipal Act, R.S.O., 1937, c. 266 and amendments, prohibiting the use within a defined area of land, or the erection or use of buildings, for other than residential purposes. The second paragraph of the by-law provided a penalty for breach thereof, and by the second sentence therein, that each ten days during which the prohibited conditions were maintained should constitute a separate offence.

S. 406(3) of the Municipal Act provided that no part of any by-law passed under the section should come into force without the approval of the Municipal Board and ss. 4 provided no part of any such by-law approved by the Board should be repealed or amended without the approval of the Board. The respondents applied to the Supreme Court of Ontario for an order determining their rights and for an order quashing the by-law for illegality.

The trial judge quashed the by-law. On appeal to the Court of Appeal all members of that Court agreed that the second sentence of paragraph two of the by-law was not authorized by the provisions of s. 406, but the majority were of the view that because of the provisions of ss. 3 and 4, there could be no severance.

Held: That the words “repealed or amended” in s. 406(4) are not referable to any order or judgment of a Court but are applicable merely to an attempt on the part of a municipality to amend or repeal a by-law which has already been approved by the Municipal Board.

City of Chatham v. Sisters of St. Joseph 1940 O.W.N., 548 distinguished.

Per Rand and Kellock JJ.: The principle of severance can be applied to a by-law which is invalid in part when the invalid part is not enacted under s. 406 and is not therefore subject to the approval of the Municipal Board.

APPEAL by special leave of The Supreme Court of Canada from the judgment of the Court of Appeal for Ontario[1], Hogg J.A. dissenting in part, dismissing the

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appeal of the appellant from the judgment of Gale J. quashing By-Law 866 passed by the Council of the Corporation of the Village of Long Branch.

M. Grant for the appellant.

J.L.G. Keogh K.C. for the respondent.

The judgment of the Chief Justice, Kerwin and Taschereau, JJ. was delivered by:

KERWIN J.:—The respondents applied to the Supreme Court of Ontario for an order declaring and determining their rights, depending upon the construction of By-law No. 866 of the Village of Long Branch, and also for an order quashing the by-law for illegality. An order was made granting the relief secondly claimed and directing (by paragraph 4) that while preserving all rights of the parties with respect thereto, no order be made upon the first motion. No reasons were given by the learned judge so far as we are informed but on appeal to the Court of Appeal for Ontario[2] Laidlaw J.A., speaking on behalf of himself and Aylesworth J.A., dismissed the appeal for reasons to be mentioned later.

By-law 866 is as follows:—

VILLAGE OF LONG BRANCH BY-LAW NO. 866

A By-law to restrict the use of lands shown on Plan 2180 and the portion of Lot 10 in the Broken Front on the West side of Thirty-seventh Street, lying south of a line drawn 120 feet Southerly from and parallel to the South limit of Lake Shore Road as widened, to residential uses.

WHEREAS the Council have received a petition to restrict the use of the above lands to residential purposes and the Council deem it advisable to comply with the said request.

THEREFORE THE MUNICIPAL COUNCIL OF THE CORPORATION OF THE VILLAGE OF LONG BRANCH ENACTS as follows:

1. The use of the land or the erection or use of buildings for any other than residential uses is prohibited within that part of the Village of Long Branch lying south of a line drawn 120 feet Southerly from and parallel to the Southerly limit of Lake Shore Road as widened, as shown on Plan 2180, and the portion of Lot 10 in the Broken Front on the West side of Thirty-seventh Street.

2. 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 Fifty Dollars ($50) for each offence. The imposition of one penalty for any violation shall not permit it to continue, and all such persons shall be required

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to correct or remedy such violations or defects within a reasonable time, and when not otherwise specified each 10 days that the prohibited conditions are maintained shall constitute a separate offence.

PASSED this Fifth day of September, A.D. 1946.

“G.H. Clarkson”                                        “Thos. F. Carter”

Clerk                                                           Reeve

                                                                               (Seal)

This by-law was passed in pursuance of section 406 of the Municipal Act, R.S.O. 1937, chapter 266, and amendments, the relevant provisions of which are as follows:—

406.—(1) By-laws may be passed by the councils of local municipalities:

1. For prohibiting the use of land, for or except for such purposes as may be set out in the by-law, within any defined area or areas or abutting on any defined highway or part of a highway.

2. For prohibiting the erection or use of buildings or structures, for or except for such purposes as may be set out in the by-law, within any defined area or areas or upon land abutting on any defined highway or part of a highway.

* * *

(3) No part of any by-law passed under this section shall come into force without the approval of the Municipal Board, and such approval may be for a limited period of time only, and the Board may extend such period from time to time upon application made to it for such purpose.

(4) No part of any by-law passed under this section and approved by the Municipal Board shall be repealed or amended without the approval of the Municipal Board.

In accordance with subsection 3, the by-law was approved by the Municipal Board on October 26, 1946.

All the members of the Court of Appeal were of opinion that the second sentence in paragraph 2 of the by-law was invalid and that conclusion is not attacked by the appellant. The majority considered that in view of the provisions of subsections 3 and 4 of section 406 of the Municipal Act, the by-law, having been approved by the Municipal Board, could not be declared by the Court to be invalid only in part. Mr. Justice Hogg was of opinion that the words “repealed or amended” in subsection 4 were not referable to an order or judgment pronounced by a Court but were applicable merely to an attempt on the part of a municipality to repeal or amend a by-law which had already been approved by the Board and with this interpretation I agree.

The view of the majority of the Court of Appeal is based upon an obiter dictum of the Chief Justice of Ontario in

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City of Chatham v. The Sisters of St. Joseph[3] where he states at page 554:—“It is very doubtful whether any part of a by-law which depends for its coming into effect upon the approval of it as a whole by the Municipal Board, must not stand or fall as a whole. The council cannot amend it without the Board’s approval, yet in effect that is what the Court would do if it should hold part of the by-law to be invalid and other parts of it to be valid and in force.” That statement had already been approved in another obiter dictum by Mr. Justice Laidlaw in Wilmot v. City of Kingston[4]. In the Chatham case the Chief Justice of Ontario proceeded, after the extract quoted above, as follows:—

These by-laws for imposing building restrictions usually set up a scheme which is designed and adopted as a whole, and, quite apart from the question of the approval of the Municipal Board, it is from the very nature of the by-law a delicate operation for the Court to sever one part of such a by-law from the rest with any assurance that what is left of it sets forth any scheme that the council had put in operation.

I quite agree with these last remarks as referable to the situation before the Chief Justice but they are not applicable to the present case. As Middleton J.A. stated in Morrison v. City of Kingston[5] at 27, a part of a by-law found invalid must be clearly severable in order to uphold the remainder but that condition exists here where the only part found invalid is the additional penalty imposed by the second sentence of paragraph 2 of the by-law. That additional penalty is not so bound up with the provision in paragraph 1 as to form part of the scheme adopted by the council of the municipality.

The appeal should be allowed and the order made by the judge of first instance should be amended by striking out paragraphs 1 and 2 there and substituting therefor an order that the second sentence of paragraph 2 of By-law 866 be quashed. Paragraph 3, directing the municipality to pay the applicants their costs of and incidental to the application to quash, and paragraph 4 preserving the rights of all parties on the branch of the motion for the determination of the rights of the applicants depending upon the construction of the by-law, may remain. The appellant is entitled to its costs in the Court of Appeal and in this Court.

[Page 561]

RAND J.:—This appeal concerns the validity of a by-law passed by the Village of Long Branch under section 406 of the Municipal Act of Ontario, the material parts of which are as follows:—

1. The use of the land or the erection or use of buildings for any other than residential uses is prohibited within that part of the Village of Long Branch lying south of a line drawn 120 feet southerly from and parallel to the southerly limit of Lake Shore Road as widened, as shown on Plan 2180, and the portion of Lot 10 in the Broken Front on the West side of Thirty-seventh Street.

2. 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 Fifty Dollars ($50) for each offence. The impostion of one penalty for any violation shall not permit it to continue, and all such persons shall be required to correct or remedy such violation or defects within a reasonable time, and when not otherwise specified each 10 days that the prohibited conditions are maintained shall constitute a separate offence.

An application by the appellants to quash was granted by Gale J. On appeal[6] Laidlaw J.A., speaking for the court, held that the principle of severability was not applicable to a by-law requiring for its validity the approval of the Municipal Board. On that ground, the order to quash was affirmed.

Section 406 deals with special powers, and under ss. (3) no part of any by-law “passed under this section” shall come into force without the approval of the Board. Subsection (7) empowers the Board to approve “any such by-law in whole or in part”. The section does not contain express power to impose penalties, but that is conferred by section 520 which authorizes fines not exceeding $50 exclusive of costs. Then section 525 provides that in addition to any other remedy provided by the Act and to any penalty imposed “by the by-law, the contravention may be restrained by action at the instance of a ratepayer or the Corporation.”

From those provisions I think it clear that it is only by-law legislation which derives its force from section 406 that requires approval by the Board, and that the penalty provision of the present by-law, therefore, drawing its efficacy from section 520, is not a matter for approval. That the powers arising under the two sections may be exercised in one by-law, is, I think, unquestionable, and the fact that the matter of one power is subject to approval

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does not impliedly incorporate the separate matter as an essential of the by-law under 406, making it likewise subject to approval. From this it follows that the approval of the Board is effectual only to the first paragraph of this by-law, and the principle upon which the Court of Appeal acted is not applicable. In the authorities cited where such a rule seems to have been approved, the matters which were being dealt with arose exclusively under section 406.

The remaining question is whether the latter part of the second paragraph, being ultra vires, is distinct and severable from the rest of the by-law. What the Council obviously had in mind, as its primary purpose, was to enact a building or use restriction; what it sought secondarily was the most effective means for enforcing compliance; and I think it scarcely arguable that because the Council tried to multiply penalties it should be assumed that the main object was to be conditional upon the effectiveness of every sanction; that would be to reverse the order of importance and make the substantial purpose merely a peg on which to hang penalties for their own sake. The Council had the same end in view as lies behind section 525, to make its prohibition effective.

I would, therefore, allow the appeal and direct the last sentence of the second paragraph of the by-law to be declared quashed with costs as proposed by my brother Kerwin.

KELLOCK J.:—It is not necessary to repeat the provisions of the by-law here in question. The by-law was attacked on the ground that the last sentence of paragraph 2 was not authorized by the provisions of section 406 of the Municipal Act, R.S.O., 1937, cap. 266, as amended, and that the by-law not being severable, must be declared void in toto. All of the members of the court appealed from agreed that the sentence objected to was invalid but the majority were of the view that because of the provisions of subsections 3 and 4 of section 406 there could be no severance.

Counsel for the appellant submits that there is nothing in section 406 which authorizes the council to enact any part of paragraph 2 of the by-law and that accordingly the approval of the Board must be taken to be limited to

[Page 563]

the subject matter of paragraph 1 with which alone it is by the section authorized to deal. He, accordingly, contends that subsections 3 and 4 have no application to that part of the by-law which is alleged to be invalid and that there is no obstacle in the way of severing the good from the bad.

In my opinion this position is well taken. Section 406 does not enable the council to legislate with respect to any penalty for a breach of the by-law. When the legislature intends to give such authority it does so expressly. Paragraph 11 of section 420 is an illustration. By section 408, paragraph 11 also, provision is made for the passing of a by-law with the approval of the Municipal Board relating to the subject matters therein mentioned but the section by clause (b) provides its own penalty. A by-law passed under this provision therefore could not effectively provide a penalty.

Section 520 makes provision generally for penalties for the contravention of by-laws. This section would of course not operate in the cases covered by the special provisions of sections 408 (11) and 420 (11). With the provisions of a by-law passed pursuant to section 520, whether standing alone or forming part of such a by-law as that here in question, the Municipal Board has nothing to do. In my opinion, therefore, the approval of the Municipal Board must be taken to be confined to the matters within its jurisdiction, namely, the provisions of paragraph 1 of the by-law, with the result that subsections 3 and 4 of section 406 do not prevent and have no application to the question of severance.

I see no reason to differ from the court below in the view that the last sentence of paragraph 2 goes beyond the authority granted to the council by section 520 and I agree also that the case is a proper one for severing the invalid part from the remainder of the by-law; Rex. v. Van Norman[7] at 455.

In support of the judgment appealed from counsel for the respondent referred to Chatham v. Sisters of St. Joseph[8] at 553. In the passage in the judgment of Robertson C.J.O., relied upon, the learned Chief Justice was there

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referring to a provision in the by-law there in question which dealt with the building scheme itself. The cases are clearly distinguishable.

I would, therefore, allow the appeal and vary the order of Gale J., by limiting paragraph 1 to the concluding sentence of paragraph 2 of the by-law. The costs should be disposed of as proposed by my brother Kerwin.

Appeal allowed and order made by judge of first instance amended by striking out paragraphs 1 and 2 and substituting therefore an order that the second sentence of paragraph 2 of By‑Law 866 be quashed. Appellant entitled to its costs in the Court of Appeal and in this Court.

Solicitors for the appellant: Grant and Grant.

Solicitors for the respondent: Bench, Keogh, Rogers & Grass.