Melcar Inc. et al. v. Ministre de la Voirie de Québec et al., [1970] SCR 421

Supreme Court of Canada

Melcar Inc. et al. v. Ministre de la Voirie de Québec et al., [1970] S.C.R. 421

Date: 1970-01-27

Melcar Inc. and Henri Deslauriers (Plaintiffs) Appellants;

and

Le Ministre de la Voirie de Québec and Le Procureur Général de Québec (Defendants) Respondents.

1969: November 18, 19; 1970: January 27.

Present: Fauteux, Abbott, Martland, Ritchie and Hall JJ.

ON APPEAL FROM THE COURT OF QUEEN’S BENCH, APPEAL SIDE, PROVINCE OF QUEBEC

Expropriation—Servitude of non-access—Claim for indemnity rejected by the Public Service Board—Roads Act, R.S.Q. 1941, c. 141, ss. 23, 25 [now R.S.Q. 1964, c. 133]—Civil Code, art. 407.

In 1957, the Minister of Roads expropriated a servitude of non-access to be applied to the plaintiffs’ property. While the matter of the indemnity was before the Public Service Board, the Minister expropriated a portion of the land subject to the servitude of non-access which, with certain modifications, thereafter applied to the remainder of the property. Compensation was paid for the expropriation of that portion of the land. The Board rejected the plaintiffs’ claim for indemnity for the expropriation of the servitude. The order of the Board was duly homologated by the Superior Court. The Board held that it was bound to apply s. 25 of the Roads Act, R.S.Q. 1941, c. 141, and that it was justified in holding that the plaintiffs were not entitled to any indemnity. That decision was affirmed by the Court of Appeal. The plaintiffs appealed to this Court.

[Page 422]

Held: The appeal should be dismissed.

The Court of Appeal has rightly concluded that there had been, on the part of the Board, no error which could justify an intervention by that Court either in its appreciation of the facts put in evidence before it, in its findings on those facts, or in its interpretation and application of s. 25 of the Roads Act.

APPEAL from a judgment of the Court of Queen’s Bench, Appeal Side, province of Quebec[1], affirming a judgment of the Superior Court homologating an order of the Public Service Board in an expropriation matter. Appeal dismissed.

Jules Deschênes, Q.C., and Stanislas Germain, Q.C., for the plaintiffs, appellants.

Bernardin Blanchet, Q.C., and Guy Dorion, Q.C., for the defendants, respondents.

The judgment of the Court was delivered by

ABBOTT J.—This appeal is from a unanimous judgment of the Court of Queen’s Bench[2] affirming an order of the Public Service Board of Quebec—which, for convenience, I shall refer to as “the Board”—by which the appellants were denied any indemnity by reason of the expropriation by the Minister of Roads of a servitude of non-access.

The relevant facts are fully discussed in the order of the Board and in the judgment in the Court below. For the purpose of these reasons, I shall summarize them briefly.

The immoveable property, with respect to which the servitude was established, fronts on Boulevard Henri IV in “la cité de Ste-Foy”, a suburb of Quebec. The property was purchased by the appellant Deslauriers on October 24, 1955, for a price of $250,000. In December 1957, Deslauriers sold the said property to the appellant Melcar Inc.—a company in which he was interested—for the same price, $250,000, with effect retroactive to October 24, 1955.

On May 25, 1957, the Minister of Roads had given notice of expropriation of the servitude of

[Page 423]

non-access and, in June 1958, the appellants applied to the Superior Court to have the matter referred to the Board “pour qu’elle agisse comme arbitre en vue de la fixation de l’indemnité due à la requérante Melcar Inc.” That application was granted.

In August 1958, the appellants filed with the Board a claim for $135,020, as damages resulting from the creation of the servitude. Subsequently, in 1961, that claim was increased to $675,035. In the meantime, the Minister had expropriated a portion of the land subject to the servitude of non-access which, with certain modifications, thereafter applied to the remainder of the property.

By order of the Board, dated August 29, 1962, appellants’ claim for indemnity was rejected. Following certain litigation, which is no longer relevant to the issue on this appeal, the order of the Board was duly homologated and, in effect, that order is the subject of the appeal to the Court of Queen’s Bench and to this Court.

The Roads Act (now R.S.Q. 1964, c. 133) contains provisions concerning the acquisition by the Crown of servitudes for highway purposes. The relevant sections, in issue here, are these:

23. The Minister may acquire all the perpetual or temporary servitudes which to him appear to be desirable for any built or projected road, and especially:

* * *

(c) The servitude of non-access to the public road, with prohibition to make any opening in the fence along the road;

* * *

25. No indemnity is due for the acquisition of the servitudes of non-access and of non‑building, when they do not render the immoveable subject thereto practically non‑utilizable for the purposes for which it is then utilized. Whenever the Minister deems that no indemnity is due, he shall give to the proprietor, instead of the expropriation notice, a notice by registered mail that any claim must be laid before the Public Service Board within the year. On a petition by the proprietor, the Board may determine the indemnity to be paid, if there be occasion therefor.

[Page 424]

Two questions arose for determination by the Board and, on appeal, by the Court of Queen’s Bench:

1. Was the Board bound to apply Section 25 of the Roads Act in determining the question submitted to it for adjudication?

2. If it was so bound, on the evidence before it, was the Board justified in holding that appellants were not entitled to any indemnity for the acquisition by the Crown of the servitude of non-access?

The Board answered both these questions in the affirmative and that decision was affirmed by the Court of Queen’s Bench. The appeal to this Court is from that decision.

The facts and the relevant legal principles are fully discussed by Brossard J. in the able and exhaustive reasons delivered by him in the Court below. Those reasons were concurred in by Pratte, Hyde, Montgomery and Badeaux JJ.

In his conclusions, the learned judge said this:

[TRANSLATION] I have no hesitation in concluding that there has been, on the part of the Board, no error which could justify an intervention by our Court either in its appreciation of the facts put in evidence before it, in its findings on those facts, or in its interpretation and application of Section 25 of The Roads Act.

Undoubtedly, the provisions of this Section are rigorous and make an onerous exception to the general rule stated in Article 407 of the Civil Code, an exception involving the risk that a private person or a small number of private persons will have to bear a burden imposed for the benefit of the general public, something which is apt to be considered iniquitous. It is not our duty to pass judgment on the wisdom of those provisions. However, I would observe that they were enacted in what the legislator considered to be the general public interest. I would also point out that all inconveniences or damages which the expropriated parties have had to bear on account of the initial imposition of the servitude of non-access have been considerably minimized, if not totally offset, by the compensation representing nearly two fifths of their initial outlay which the Roads Department paid for the expropriation, always in the public interest, of barely one tenth of their land.

I am in respectful agreement with those conclusions and I adopt them.

[Page 425]

I would dismiss the appeal with costs.

Appeal dismissed with costs.

Solicitors for the plaintiffs, appellants: Germain, Thibaudeau & Lesage, Quebec.

Solicitor for the defendants, respondents: B. Blanchet, Quebec.