Santilli v. City of Montreal, [1977] 1 SCR 334

Supreme Court of Canada

Santilli v. City of Montreal, [1977] 1 S.C.R. 334

Date: 1975-06-26

Antonio Santilli Appellant;

and

City of Montreal Respondent.

1975: May 8; 1975: June 26.

Present: Laskin C.J. and Judson, Pigeon, Dickson and de Grandpré JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR QUEBEC

Municipal law—Amendment of a zoning by-law—Indemnity payable to proprietors having vested rights—Charter of the City of Montreal, 1959-60 (Que.), c. 102, amended by 1962, c. 59, s. 524(2)(b).

In 1966 appellant submitted preliminary plans for a building which he planned to construct to respondent. He was informed that his plans were in conformity with the zoning by-laws then in force. On August 28, 1969 appellant filed a formal demand for a building permit. On October 15, 1969 respondent advised appellant that his plans did not conform with the amended by-law adopted by Council on September 30, 1969, on the recommendation made by the City’s Executive Committee on July 25, 1969. Appellant then filed a petition in the Superior Court demanding an indemnity for vested rights to be fixed by the Expropriation Bureau of the City of Montreal, in accordance with s. 524(2)(b) of the Charter of the City of Montreal. The Superior Court dismissed the petition and the Court of Appeal affirmed the judgment. Hence the appeal to this Court.

Held: The appeal should be dismissed.

Generally a zoning by-law cannot affect vested rights. Section 524(2)(b) of the Charter gives the City the power to do so, but on condition that it pays an indemnity. This variation was for the purpose of giving the City wider powers of regulation, not to give greater rights to private proprietors. In the case at bar appellant, not having obtained a building permit nor started construction, had no vested rights within the meaning of para. (2)(b).

Taylor Blvd. Realties v. City of Montreal, [1963] Q.B. 839, affirmed [1964] S.C.R. 1965, referred to.

APPEAL from a judgment of the Court of Appeal of Quebec, affirming a judgment of the Superior Court dismissing a petition by appellant. Appeal dismissed with costs.

[Page 335]

G. Fafard and O. Decary, for the appellant.

N. Lacroix, for the respondent.

The judgment of the Court was delivered by

PIGEON J.—The decision of the Court of Appeal affirmed the judgment of the Superior Court dismissing appellant’s motion. By this motion appellant, an owner of immovables in the City of Montreal, demands an indemnity to be fixed by the Expropriation Bureau, because of an amendment to the zoning by-law which prevented him from constructing the large building he had planned to put up. Montgomery J.A. summarized the essential facts as follows:

In April 1966 Appellant bought two properties on St. Sulpice Road on which stood small apartment buildings. He proposed to demolish these and to erect a higher building and, in order to have sufficient area for this purpose, he bought about 800 square feet of adjoining land. His architect then submitted preliminary plans for an apartment building to officers of the City and received a letter dated 12th July, 1966, informing him that these plans were apparently in conformity with the City’s zoning by-laws (Exhibit P-2). After some efforts to obtain financing, Appellant decided that it was not a propitious time to proceed with the building, and the project was suspended before he had either obtained a building permit or done any work on the ground.

It was not until 28th August, 1969, that Appellant filed a formal demand for a building permit. A month earlier, on 25th July, the City’s Executive Committee had recommended to the City the adoption of an amended zoning by-law. As a result of this, consideration of Appellant’s application was suspended. The amended by-law was adopted by the City Council on 30th September, and on 15th October he was advised that the plans for the proposed building did not conform with the by-laws as amended.

There is no suggestion that the City acted in bad faith, and Appellant does not challenge the validity of the zoning by-law, as amended. By his petition, made in April 1969, he claims to be entitled to an indemnity in accordance with sec. 524 of the Charter. Subsection 2b of this section gives the City wide powers to regulate the construction and use of buildings in various zones, subject to payment of an indemnity to owners, etc., having vested rights, or, in French, “ayant des droits acquis”.

[Page 336]

Section 524(2)(b) of the Charter of the City of Montreal, reads as follows:

(b) Divide the municipality into zones, of such number, shape and area as seems suitable; regulate and restrict differently according to the location in such zones, parts or sections of certain zones or in certain streets, parts or sections of certain streets or at any place whatever, the use and occupancy of lots, the kind, destination, occupancy and use of buildings which may be erected as well as the maintenance, reconstruction, alteration, repair, enlargement, destination, occupancy and use of buildings already erected, except in such case the indemnity, if any, payable to the owners, lessees or occupants having vested rights.

The decision of the trial judge on the meaning of this provision is summarized by Montgomery J.A. as follows:

The sole issue before the courts is whether Appellant has vested rights or “droits acquis”. This question was carefully studied by the judge in the Superior Court. After a detailed analysis of the jurisprudence, he concluded that Appellant did not have “droits acquis” within the meaning of subsec. 2b. He based himself upon the decision of the Supreme Court in Canadian Petrofina Ltd. v. Martin and City of St. Lambert, [1959] S.C.R. 453, which followed a decision of the Privy Council in City of Toronto v. Trustees of the Roman Catholic Separate Schools of Toronto, [1925] 3 D.L.R. 880. He also referred to the Supreme Court’s decision in Cité de Sillery v. Sun Oil Co., [1964] S.C.R. 552. He concluded that Appellant, not having obtained a building permit nor started construction, could not be said to have “droits acquis” within the meaning of subsec. 2b.

In this Court, as in the Court of Appeal, counsel for the Appellant maintained that the latter had vested rights and antedating the amendment of the zoning by-law, because having purchased the immovable in order to construct a large building on it, as he was then permitted to do by the by-law, he had applied for a permit before the amendment was enacted. In support of this claim, he cited the following sentence from Taschereau J. in Taylor Blvd. Realties v. City of Montreal[1], at p. 845:

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[TRANSLATION] I would accept applicants’ argument if the evidence disclosed for instance, that they had applied for a building permit, subdivided their land, opened roads or done other similar acts.

It is true that this decision of the Court of Appeal was upheld by this Court[2], but the sentence quoted above is only an obiter dictum, because the decision was to dismiss the demand for an indemnity, on the basis that an owner of immovables has no vested right to erect new structures in accordance with the by-law in force at the time of the purchase. It does not seem necessary for me to attempt to define the circumstances in which vested rights arise within the meaning of sub. 2(b). Nor will I undertake to inquire whether the history of the legislation, and the English version, indicate that the right to indemnity applies only to what follows the words “as well as”, namely: “the maintenance, reconstruction, alteration, repair, enlargement, destination, occupancy and use of buildings already erected”; all of this as opposed to the first part of the text, which refers to “buildings which may be erected”.

In any case, I am in complete agreement with the remarks of Montgomery J.A. at the conclusion of his reasons, as follows:

It is true that in most of the earlier cases the courts were considering zoning by-laws enacted under statutory authority that provided that such by-laws could not affect vested rights, so that if the proprietor had vested rights he could proceed with the erection of a building that did not conform with the new by-law. Subsec. 2b gives the City the right to affect vested rights but provides for the payment of an indemnity.

In my opinion, this variation from the general law was for the purpose of giving the City wider powers to regulate the construction and use of buildings, not to give greater rights to private proprietors. I therefore am of the opinion that the earlier jurisprudence is still applicable, and I note that in the Taylor Blvd. Realties case, on which Appellant relies, Fauteux J. (later Chief Justice of Canada), giving the opinion of the Supreme Court, cited its earlier decision in the Canadian Petrofina case, above cited.

[Page 338]

In my opinion, the appeal should be dismissed with costs.

Appeal dismissed with costs.

Solicitors for the appellant: de Grandpré, Colas, Amyot, Lesage, Deschêsnes & Godin, Montreal.

Solicitors for the respondent: Côté, Péloquin & Bouchard, Montreal.