Cholod et al. v. Baker et al., [1976] 2 SCR 484

Supreme Court of Canada

Cholod et al. v. Baker et al., [1976] 2 S.C.R. 484

Date: 1975-06-25

Ted Cholod, Ionne Dombowsky and Paul Trudelle

and

The Attorney General for Saskatchewan ex rel. Ted Cholod, Ionne Dombowsky and Paul Trudelle Appellants;

and

H.H.P. Baker, Mayor of the City of Regina,

and

J. Mohr, E.C. Strass, W.H. Coates, Mrs. L.E. Scott, J.M. Boyle, L.C. Sherman, C. Rodham, A.J. Selinger, J.J. Thauberger and S.E. Oxelgren, Members of the Council of the City of Regina,

and

The City of Regina Respondents.

1975: June 24, 25; 1975: June 25.

Present: Laskin C.J. and Martland, Judson, Ritchie, Spence, Pigeon, Dickson, Beetz and de Grandpré JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR SASKATCHEWAN

Municipal law—Petition to City Council to introduce by-law for submission to burgesses—Failure of Council to act—Money by-law for burgesses only—Mandamus allowed—The Urban Municipality Act, 1970 (Sask.), c. 178, s. 138 (am. 1972, c. 143, s. 8), s. 235 (para. 5).

On December 4, 1965, the Council of the City of Regina passed a by-law creating a trust fund of more than $1,000,000 for the construction of a new city hall. The Local Development Board approved the by-law and the fund thereby created was increased from time to time. However the proposed project was not publicly announced until the spring of 1974, whereupon a number of citizens indicated to Council their view that the matter was one which should be referred to a vote of the citizens in accordance with the provisions of s. 138 of The Urban Municipality Act. This section provides that when a petition is presented to the Council for the submission of a by-law on a question concerning a matter within the legislative jurisdiction of the Council and the petition is signed by a required number of voters

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or burgesses, a by-law in accordance with the request of the petitioners shall be introduced within four weeks and the necessary steps shall be taken to submit the by-law to the voters or burgesses, as the case may require.

Continued representations to the City Council on behalf of the citizens opposed to the project failed to deter Council from proceeding to pass by-laws on November 8, 1974, authorizing the Mayor and City Council to enter into a contract with an architect and construction manager for the erection of a $7,000,000 city hall.

On January 31, 1975, a petition was presented to Council for the submission of a by-law to provide: (1) that the city not proceed with the erection of a new city hall and that any by-law theretofore passed authorizing such construction be repealed; (2) that the city proceed to renovate the present city hall and expend for that purpose an amount not to exceed $1,000,000. The petition contained the signatures of 3,601 burgesses and 3,866 electors and the City Clerk reported to Council that on the face of it the number of voters’ signatures required by s. 138 had been obtained.

City Council passed a motion providing that the petition should be “received and filed” and no further action was taken thereto. An application by the appellants for a writ of mandamus commanding the respondents as Mayor and members of the City Council of Regina to carry out the ministerial function conferred upon them by s. 138 was dismissed by the Saskatchewan Court of Appeal. With leave, an appeal was then brought to this Court.

Held (Pigeon and Beetz JJ. dissenting in part): The appeal should be allowed.

Per Laskin C.J., Martland, Judson, Ritchie, Spence, Dickson and de Grandpré JJ.: The by-law suggested in the petition related to a question concerning a matter within the legislative jurisdiction of Council. It was framed in terms capable of being incorporated in a by-law which the citizens could understand, and there were not sufficient grounds for the Court of Appeal to decline to exercise its discretion in the granting of the appellants’ application for a writ of mandamus. The suggested by-law was a “money by-law” proper to be submitted to the burgesses under the terms of s. 138 of The Urban Municipality Act. Accordingly, the appeal should be allowed, the judgment of the Court of Appeal should be set aside and in its place an order of mandamus should issue to the respondents, directing them to submit to a vote of the burgesses a by-law as requested

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in the petition, such vote to be taken, as provided by s. 134(2) of The Urban Municipality Act, in accordance with the procedure set out in Part III of The Urban Municipal Elections Act, 1968 (Sask.), c. 82.

Per Pigeon and Beetz JJ., dissenting in part: The by-law requested by the petition should be submitted to the voters, not to the burgesses only. The proposed by-law is a “municipal question” within the meaning of para. 5 of s. 235 of The Urban Municipality Act. It follows that one must ascertain from the terms of this enactment whether the question is to be submitted to the burgesses only or to the voters at large. The test is whether “the question deals with the contracting of a debt or the borrowing of money”. Such is not the case. The suggested by-law does not propose to contract a debt or to borrow money, it proposes to use money available in a special fund.

APPEAL from a judgment of the Court of Appeal for Saskatchewan[1], dismissing the appellants’ application for a writ of mandamus commanding the Mayor and members of the City Council of Regina to introduce a money by-law to be submitted to the burgesses in accordance with s. 138 of The Urban Municipality Act, 1970 (Sask.), c. 78, as amended. Appeal allowed, Pigeon and Beetz JJ. dissenting in part.

A.J. Beke, for the appellants.

D.K. MacPherson, Q.C., and H.F. Feuring, Q.C., for the respondents.

The judgment of Laskin C.J. and Martland, Judson, Ritchie, Spence, Dickson and de Grandpré JJ. was delivered by

RITCHIE J.—This is an appeal from an order of the Court of Appeal for Saskatchewan dismissing the appellants’ application for a writ of mandamus commanding the respondents as Mayor and Members of the City Council of Regina,

…to carry out the ministerial function conferred upon them by Section 138 of The Urban Municipality Act, S.S. 1970, Chapter 78, as amended, to introduce a money bylaw to be submitted to the burgesses in accordance with the petition filed in the following form:

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(1) That the City of Regina not proceed with the erection of a new City hall and that any bylaw heretofore passed authorizing such construction is hereby repealed;

(2) That the City of Regina proceed to renovate the present city hall and to expend for that purpose an amount not to exceed one million dollars.

Leave to appeal to this Court having been granted and argument having been heard as well for the respondents as the appellants, the following opinion was rendered orally by the Chief Justice in open Court:

This Court is of the opinion that this appeal should be allowed, that the judgment of the Saskatchewan Court of Appeal should be set aside and that in its place an order of mandamus should issue to the respondents, directing them to submit to a vote of the burgesses a by-law as requested in the petition submitted under s.138 of The Urban Municipality Act, 1970 (Sask.), c. 78 as amended, such vote to be taken, as provided by s. 134(2) of The Urban Municipality Act, in accordance with the procedure set out in Part III of The Urban Municipal Elections Act, 1968 (Sask.), c. 82 and with due despatch under that procedure. The appellants are entitled to their costs in this Court and in the Saskatchewan Court of Appeal.

Reasons of the majority and dissenting reasons for the judgment herein will be delivered later.

It will be apparent from the above that the dispute with which we are here concerned centres around the effect to be given to the provisions of s. 138 of The Urban Municipality Act, 1970 (Sask.), c. 78 as amended, and I agree with Chief Justice Culliton, speaking on behalf of the Court of Appeal for Saskatchewan, when he says:

Therefore, the basic questions are:

(1) are the circumstances of this case such as to give rise to the statutory duty imposed on the City by s. 138?

(2) If so, in the circumstances of this case, should the Court in the exercise of its discretion grant a writ of mandamus?

Many of the circumstances giving rise to the present dispute are outlined in the reasons for judgment of the Court of Appeal and there is essentially no dispute about the facts there recounted, although certain arguments advanced

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by the respondents in this Court do give rise to a difference of opinion.

The application for mandamus discloses that this litigation concerns the by-laws passed by the City of Regina authorizing the erection of a new city hall.

On December 4, 1965, the City Council of the City of Regina passed a by-law creating a “Regina City Capital Trust Fund” for “the construction of a new city hall and for such other purposes as may from time to time be approved by the Local Government Board.” This fund of more than $1 million was obtained in large measure from the proceeds of the sale of city lands and it is important to realize that once it was established its use was at all times subject to the control and approval of the Local Government Board and the city was powerless to apply any of the money so set aside to the construction of a city hall or for any other project until such approval had been obtained. See The City Act, R.S.S. 1965, c. 147, now The Urban Municipality Act, 1970 (Sask.), c. 78, s. 315(5). The by-law having been approved by the Local Government Board, the fund thereby created was increased to more than $2 million in April 1967 and further increased by the addition of $1,711,000 in 1973, but the project of constructing a new city hall was not publicly announced until the spring of 1974 whereupon a number of citizens indicated to the City Council their view that the matter was one which should be referred to a vote of the citizens in accordance with the provisions of s. 138 of The Urban Municipality Act.

From this time onwards representations continued to be made to City Council on behalf of the citizens opposed to the project who became organized as a group under the name of “Citizens for a Plebiscite on City Hall Committee”. In September 1974, a petition in the form recited in the present application was first circulated amongst the burgesses of the city and in the next month written representations were made to Council advising that the petition was being circulated and pointing out that the provisions of s. 138 of The Urban Municipality Act made it mandatory for Council to refer the matter to a vote as described in the

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section if the petition should contain the names of the requisite number of voters. These representations did not deter the City Council from proceeding to pass by-laws on November 8, 1974, authorizing the Mayor and City Council to enter into a contract with an architect and construction manager for the erection of a $7 million city hall.

On January 31, 1975, the petition to which I have already referred was presented to the City Countil; it contained the signatures of 3,601 burgesses and 3,866 electors and the City Clerk reported to Council that on the face of it the number of voters’ signatures required by s. 138 of The Urban Municipality Act had been obtained.

City Council passed a motion providing that the petition should be “received and filed”. On the advice of the city solicitor, no further action was taken pursuant thereto.

The relevant sections of The Urban Municipality Act read as follows:

138. When a petition is presented to the council for the submission of a bylaw on a question concerning a matter within the legislative jurisdiction of the council and the petition is signed:

(a) in the case of a bylaw on which all voters may vote, by ten resident voters or the number of resident voters equivalent to five per cent of the population as shown by the latest federal census, whichever is the greater; or

(b) in the case of a bylaw on which only burgesses may vote, by ten resident burgesses or the number of resident burgesses equivalent to two per cent of the population as shown by the latest federal census, whichever is the greater:

a bylaw in accordance with the request of the petitioners shall be introduced within four weeks and the necessary steps shall be taken to submit the bylaw to the voters or burgesses, as the case may require.

139. (1) Where a proposed bylaw is approved by a majority of the persons who vote thereon and whose ballots are not rejected, the council shall pass the bylaw within four weeks after the voting takes place.

I agree with Chief Justice Culliton when he says:

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In enacting s. 138 the Legislature provided a means by which a group of burgesses or electors, as the case may be, can compel the Council to enact a bylaw and submit that bylaw to a vote. The petition, however, must be one that meets the requirements of s. 138. If the petition does meet the requirements of the section, then, through the petition the Council can be compelled to take positive action.

The Court of Appeal, however, adopted the view that the repeal of a by-law was “not within the legislative jurisdiction of the Council” as required by the terms of s. 138(1). In so doing, the learned Chief Justice observed:

…I think a fair and proper reading of the section makes it clear that in enacting s. 138, the Legislature intended to give the electors and voters a means to compel the Council to take positive action on a matter within its legislative jurisdiction. When the Council, by by-law, has already done so, the repeal of that bylaw is not a bylaw pursuant to its legislative jurisdiction in that particular field.

With the greatest respect, it appears to me that this fails to give full effect to the provisions of s. 8 of The Urban Municipality Act which reads as follows:

8. Where power to make bylaws, regulations, rules or orders is conferred it includes the power to alter or revoke them from time to time and to make others.

While acknowledging that the repeal of a by-law is the exercise by the Council of a power conferred by the Act, Chief Justice Culliton affirmed that it is not a power “of a jurisdictional nature as contemplated by s. 138”. With all respect to the learned judges in appeal, I am unable to understand or accept this last proposition. It appears to me that s. 8 of the statute clearly confers on Council the power and jurisdiction to alter or revoke by-laws which have been legally passed, and I am of opinion that the matter raised by the present petition was within the legislative jurisdiction of the Council.

Chief Justice Culliton, however, took the view that s. 138 was not “intended to establish a means by which a group of electors or burgesses could control, or attempt to control, the actions of the Council when acting within the jurisdiction conferred upon it by the Act”, and he expressed the view that to construe the section otherwise could

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place in jeopardy contracts validly and legally entered into by the city “and could prostitute the orderly administration of the city affairs as contemplated by the Act.”

I am, on the contrary, of opinion that the provisions of ss. 138 and 139(1) are expressly designed to provide the machinery for ensuring that the voters of the city shall be afforded a controlling voice in determining whether or not a by-law which has been made the subject of a petition under s. 138 shall be enacted or not.

The question at issue in this appeal is whether a mandamus should issue commanding the Mayor and members of the City Council of Regina to introduce a money by-law to be submitted to the burgesses in accordance with s. 138. The Council is not required to pass the proposed by-law so introduced unless or until it is approved by the vote of the majority of the voters. I cannot envisage the taking of such a vote as being, of itself, a circumstance which would “prostitute the orderly administration of the City.” It may be that the result of the vote will require the City Council to change its plans, but before the vote is taken the Council will no doubt have an opportunity to indicate to the voters the disruption, if any, in the orderly administration of city affairs which would result from the adoption of the proposed by-law.

The requirement for the city to pass the proposed by-law will not necessarily flow from the granting of the application for mandamus; it is the vote of the burgesses at the election held pursuant to s. 138 which will determine whether or not Council shall be required to pass the proposed by-law.

Chief Justice Culliton, however, expressed the view that the proposed by-law contemplates the taking of negative action by the city, and that The Urban Municipality Act did not empower Council to pass a by-law requiring that “it will not act”. In this regard, Chief Justice Culliton said: “This is understandable as no authority is required by the Council to do nothing. That part of the bylaw in

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my opinion is not within s. 138(1) and, therefore, the entire bylaw is not within that section.”

With the greatest respect it appears to me that the requirement “not to proceed with the erection of a new city hall” and to repeal “any bylaw heretofor passed authorizing such construction” involves Council in exercising its authority and I am unable to subscribe to the view that it is a case of requiring “the Council to do nothing”, for which no authority would be required. This argument could in any event only be addressed to the first half of the proposed by-law.

It is not suggested that there is anything negative about the second paragraph of the petition which requires the City of Regina to proceed to renovate the present city hall, and to expend for that purpose an amount not to exceed $1 million.

Chief Justice Culliton also took the view that Council properly refused to pass the proposed by-law on the ground that “it is so lacking in clarity and precision as to be confusing and conflicting” and he concluded that no valid by-law could be drafted to encompass all the provisions requested. As to this I can only say, with the greatest respect, that I do not share the opinion of the Court of Appeal as it appears to me that a by-law could be drafted in the very terms requested, and I am unable, in the reasons for judgment of the Court of Appeal, to find any indication of the factors which are found to be so confusing and conflicting.

Finally, the Court of Appeal concludes that it should exercise its discretion against the granting of the mandamus and in this regard Chief Justice Culliton observed that: “contracts have been let for at least part of the project and construction is under way…”

I think it is evident that if mandamus were granted at this time, it would result in a chaotic situation.

No doubt this was the case in April 1975 when the Court of Appeal rendered its judgment and contracts had undoubtedly been concluded with the architect and with Poole Construction Company as

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early as October 1974, but in my view the date to be considered is January 31, 1975, when the petition of the Citizens’ Committee was first presented to City Council. There is nothing on the record to indicate that construction had actually started by that date, and in my view, if action had then been taken to comply with the petition, as I think it should have been, the chance of the development of the “chaotic situation” envisaged in the reasons for judgment of the Court of Appeal would have been minimized.

It will be seen that I am not in agreement with the reasons for judgment of the Court of Appeal, but at the hearing before this Court further grounds were raised by the respondent which require consideration.

In the first place it was urged that the names which appear on the petition had not been identified as either burgesses or electors and that it would have taken an unreasonable time for the city to investigate the status of each of the signatories. In this regard I take note that Mr. Ted Cholod, the Chairman of the organization known as “Citizens for a Plebiscite on City Hall Committee” swore an affidavit which accompanied the application for mandamus to which the petition of the burgesses was attached as Exhibit A and that he therein stated:

THAT the said Committee on or about November 22, 1974 had obtained 3,601 burgess signatures, or greater than 2% of the 139,470 population of the City of Regina, according to the 1971 Federal Census figures, which was sufficient to put the bylaw contained in the said petition to the burgesses of Regina for a vote pursuant to Section 138 of the said Act.

THAT the said Committee on or about November 22, 1974 decided to continue to canvas for additional elector signatures to obtain sufficient signatures which together with the burgess signatures would be equal to 5% of the population of Regina according to the 1971 Federal Census figures; the reason for the decision being that the said City Council was ignoring the representations of the Committee, and the Committee was of the view that the Council might attempt to reject the burgess petition on the grounds that the matter was a question to be referred to the electors for a vote and not the burgesses.

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These sworn statements are nowhere contradicted in the record but the respondents made reference to the report of the City Clerk made to Council on February 12, 1975, when the petition was being considered. That report contains the following:

The City Clerk’s Office has given the petition a superficial examination and has carried out a simple unchecked count of the number of names appearing on the petition without detailed examination of the petition for possible irregularities or duplication of names. Because of our heavy work load at this time and limited staff we had to limit our examination to this extent at present in order to expedite a report to City Council.

From our examination and count we have determined the following:

1. The petition is comprised of some 1,396 separate pieces of paper bearing some 7,467 signed or handprinted names with addresses and dates appearing opposite the names.

2. The prayer of the petition is in two forms as follows and it is to be noted that on one form the petitioners are signing as Electors and on the other form as Burgesses.

Some 3,866 names appear on the form designated for Electors and some 3,601 names appear on the form designated for Burgesses.

I cannot find anything in the City Clerk’s report or elsewhere in the record to contradict the sworn statement of the Chairman of the Plebiscite Committee and accordingly can find no reason for invalidating the petition on the ground that the requisite number of burgesses had not in fact signed or that the persons named were not in fact burgesses.

It was further strenuously argued on behalf of the respondents in this Court that the effect of the petition was to seek the holding of a vote of the burgesses concerning the enactment of a “…bylaw for the contracting of a debt or obligation or for borrowing money” and that by reason of s. 249(2) of the Act the City Council can only submit such a by-law to the burgesses if the Local Government Board so requires and that as no such requirement had been elicited or obtained, no duty rested on the City Council to comply with the request. It must, in my view, be understood that

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the by-law which the petitioners sought to have submitted to the burgesses was not one providing “for the creation of a debt not payable within the current year” within the meaning of s. 249. The money was already there; the only expenditure envisaged by the proposed by-law was that of $1 million in renovating the present city hall.

It was further suggested by the respondents that there is no reference in The Urban Municipality Act to a “money by-law”, but this statement cannot be sustained in light of the provisions of s. 134(2) of that Act which read:

134. (2) Where by this or any other Act, the assent or approval of the burgesses or voters is required before a bylaw or resolution may be passed or anything may be done, Part III of The Urban Municipal Elections Act, 1968, applies and the assent or approval shall be determined in accordance with the provisions of that Act.

Section 103 (b) of The Urban Municipal Elections Act, 1968 (Sask.), c. 82, reads as follows:

103. In this Part:

…

(b) “voters” means the person entitled to vote at the municipal elections, except in the case of a money bylaw or other bylaw upon which only the burgesses can vote, in which case it means the burgesses.

It is thus clear that the procedures for voting on a “money by-law” under The Urban Municipality Act is that outlined in s. 103(b) of The Urban Municipal Elections Act, and in my opinion the effect of this section is to provide that in the case of such a by-law “voters” means burgesses.

Section 2(b) of The Urban Municipality Act defines burgess as follows:

“burgess” means burgess as defined in The Urban Municipal Elections Act, 1968.

Section 2(1) (b) of The Urban Municipal Elections Act, 1968 contains the following definition:

2. (1) In this Act:…

(b) “burgess” means a person who:

(i) is at least eighteen years of age; and

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(ii) is a Canadian Citizen or other British subject; and

(A) is the registered owner of taxable real property in the municipality provided that where property is owned under bona fide agreement for sale it shall mean the purchaser; or

(B) is assessed as an occupant in the municipality; or

(C) is assessed for a business in the municipality; or

(D) is a shareholder of a duly incorporated cooperative association located in the municipality and established to provide housing for its members residing therein; or

(E) where such person is not in his own right qualified under paragraph (A), (B), (C) or (D), he is the spouse of a person mentioned in paragraph (A), (B), (C) or (D) and resides with that person in the municipality; except where the municipality is a summer resort village or the Village of Regina Beach, in which case the spouse resides with that person in the province;

The respondents in furtherance of their argument that the by-law here sought is not a “money by-law” made reference to the old definition of “money by-law” contained in The City Act, R.S.S. 1965, c, 147, s. 2(1) which reads:

“money bylaw” means a bylaw for contracting a debt or obligation or for borrowing money;

When The City Act was repealed, this section was not re-enacted which indicates to me that the restricted meaning there assigned to the phrase has ceased to apply in the Province of Saskatchewan and it can only be replaced by the natural and ordinary meaning of the words used. Both portions of the by-law proposed by the petition in the present case deal with the expenditure of money: the second portion with the expenditure of $1 million for renovation and the first portion with the repeal of by-laws authorizing the expenditure of $7 million for the construction of a city hall. The argument that this is not a “money bylaw” because it does not involve “contracting a debt or obligation… or the borrowing of money” amounts, in my opinion, to giving controlling effect to the

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definition formerly contained in s. 2(1) of The City Act which was repealed long before the date of the presentation of the petition. With the greatest respect for those who hold a different view, I am unable to follow or adopt this line of reasoning.

It was argued with considerable force that para. 5 of s. 235 of The Urban Municipality Act does not authorize City Council to submit a by-law to the burgesses or voters. Section 235(5) reads as follows:

235. The council may pass bylaws for all or any of the following purposes:

…

5. Submitting to a vote of the burgesses or voters any municipal question but where the question deals with the contracting of a debt or the borrowing of money it shall be submitted to the burgesses only;

The respondent contended that while this section empowers City Council to pass a by-law which may require that burgesses or voters vote on a municipal question, this is not the same thing as submitting a by-law to the burgesses or voters. The only argument raised in support of this contention was that no “municipal question” was raised by the proposed by-law, but I have difficulty in conceiving of a more basically municipal question than the construction or renovation of the building in which the municipal council is to function. I can see no merit in this argument.

In view of all the above, it will be seen that I am of opinion that the by-law suggested in the petition here in question related to a question concerning a matter within the legislative jurisdiction of Council, that it was framed in terms capable of being incorporated in a by-law which the citizens could understand, and that there were not sufficient grounds for the Court of Appeal to decline to exercise its discretion in the granting of the appellants’ application for a writ of mandamus. I am further of opinion that the suggested by-law was a “money bylaw” proper to be submitted to the burgesses under the terms of s. 138 of The Urban Municipality Act.

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For all these reasons, I am in accord with the opinion expressed orally by the Chief Justice at the hearing of this appeal and would dispose of the matter in the manner proposed by him.

The judgment of Pigeon and Beetz JJ. was delivered by

PIGEON J. (dissenting in part)—I have had the advantage of reading the reasons written by Ritchie J. I agree with him except on one point. In my view, the by-law requested by the petition should be submitted to the voters, not to the burgesses only. My reasons for this conclusion are the following.

In The Urban Municipality Act, the only provision under which the City council can take the “necessary steps… to submit the by-law to the voters or burgesses, as the case may require” is para. 5 of s. 235 which is as follows:

235. The council may pass bylaws for all or any of the following purposes:

5. submitting to a vote of the burgesses or voters any municipal question but where the question deals with the contracting of a debt or the borrowing of money it shall be submitted to the burgesses only;…

I agree with Ritchie J. that the proposed by-law is a “municipal question” within the meaning of this provision. From this, in my opinion, it follows that one must ascertain from the terms of this enactment whether the question is to be submitted to the burgesses only or to the voters at large. The test is whether “the question deals with the contracting of a debt or the borrowing of money”. In my view, such is not the case. The Council does not propose to contract a debt or to borrow money, it proposes to use money available in a special fund. The intent of the statute is clear. The burgesses only are called upon to vote when their property is apt to be burdened with assessments for paying municipal debts or borrowings.

One must bear in mind that this is the latest expression of the legislative will on the point. This is a statute of 1970 and it does not appear to me that its meaning can, in any way, be modified by consideration of the reference in s. 134(2) to Part III of The Urban Municipal Elections Act, 1968.

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In this connection, it should be noted that prior to 1968, all the matters dealt with in that statute were covered by The City Act, R.S.S. 1965, c. 147. In that statute, Part V was, like Part III of The Urban Municipal Elections Act, entitled “Voting on Bylaws”. In the first section being s. 334, para. (b) was in exactly the same words as para.(b) of s. 103 in the 1968 Act, except that it was a definition of “electors” instead of “voters”.

It cannot be supposed that by taking this whole part of the statute out of The City Act and putting it in a separate chapter, the Legislature intended to effect a profound change when it was making no change in the wording. Such would be the result if one were to say that, because the definition of “money bylaw” in s. 2(b) of The City Act was not included in The Urban Municipal Elections Act, the expression “money bylaw” was now to be read in its ordinary sense, rather than in the very restricted sense of a by-law “for contracting a debt or obligation or for borrowing money”. In view of the close connection between the two enactments and the legislative history, the expression “money bylaw” in the new Act ought to be read with the meaning it had in The City Act, that is the meaning given by the definition.

In 1970, when The City Act was replaced by The Urban Municipality Act, the definition of “money bylaw” disappeared but the substance of that provision was carried into the wording of para. 5 of s. 235. In effect, what the Legislature did in enacting the 1970 statute was to insert in the substantive enactment what was previously in the definition. In the old statute, all the same words were used plus “or obligation” which were clearly eliminated as redundant. In other words, instead of saying that burgesses only would vote on a money by-law and then providing that a money by-law means a by-law for contracting a debt or for borrowing money, it said that the burgesses only would vote on the question when it deals with the contracting of a debt or the borrowing of money. Thus everything was put in the substantive

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enactment instead of having an important part in a definition.

In my view, this case requires the application of the principle that a Legislature is not to be presumed to intend to change the law beyond what is clearly expressed. The redrafting involved in the suppression of the definition of “money bylaw” effected in 1970 could not be meant to change the meaning of The Urban Municipal Elections Act of 1968. The intention clearly was that the voting by the burgesses alone be restricted to cases where the question is the contracting of a debt or the borrowing of money. This is the essential of s. 235(5) of The Urban Municipality Act and it should govern the case as being the latest applicable enactment.

Appeal allowed, PIGEON and BEETZ JJ. dissenting in part.

Solicitors for the appellants: Griffen, Beke, Olive & Waller, Regina.

Solicitors for the respondents: MacPherson, Leslie & Tyerman, Regina.