Walters v. Essex County Board of Education, [1974] SCR 481

Supreme Court of Canada

Walters v. Essex County Board of Education, [1974] S.C.R. 481

Date: 1973-06-29

Emile Walters, Louis Walters and Albert Walters (Plaintiffs) Appellants;

and

The Essex County Board of Education (Defendant) Respondent.

1973: April 26, 27; 1973: June 29.

Present: Martland, Judson, Spence, Laskin and Dickson JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Expropriation—Proposed taking of certain land for school—Duty of approving authority to “consider” report of inquiry officer—Whether failure on part of respondent Board to carry out such duty—Whether obliged to act on report at public meeting—Certain new material before Board—Whether duty to give owners opportunity to make further representations—The Expropriations Act, R.S.O. 1970, c. 154, s. 8.

The respondent Board of Education, as an expropriating authority, proposed to take certain land, part of a highly productive farm owned by the appellants, for a new secondary school in a rural area. By virtue of s. 5(1)(b) of The Expropriations Act, 1968-69 (Ont.), c. 36, now R.S.O. 1970, c. 154, it was put in the position of applying under s. 6(1) for its own approval for its intended expropriation. The report that came to the respondent Board as approving authority was a comprehensive document in which the inquiry officer carried out the duties laid upon him by s. 7(6). He found that the proposed expropriation was indefensible, that it was neither fair nor sound and that on the merits it should not be approved. When the chairman of the respondent Board received a copy of the report, he conferred with the director of education for the Board, who had been its chief witness at the hearing, and with the solicitor for the Board who had represented it at the hearing. The Chairman instructed the solicitor to prepare reasons for rejecting the inquiry officer’s opinion on the proposed expropriation. This was done, and the reasons were before the Board when it met in private committee of the whole to consider the expropriation as approving authority. Both the director and the solicitor were present. The meeting lasted about one hour and one‑half, and it culminated in acceptance of the solicitor’s reasons and in the approval of the expropriation. Following the private meeting the

[Page 482]

Board met in public for some ten minutes to formalize what it had done in committee of the whole. The appellants were not at the public meeting and the evidence did not show whether they had any notice thereof.

Shortly afterwards the appellants brought a declaratory action to annul the expropriation and also sought damages. The trial judge dismissed the action and his judgment of dismissal was affirmed on appeal. The appellants then appealed to this Court.

Held: The appeal should be dismissed.

The appellants’ contentions that the Board had failed to “consider” the inquiry officer’s report as required by s. 8(1); that it was also obliged to act on the report at a public meeting and failed to do so; that because of certain new material and representations that were before it, beyond what was in the report, it was under a duty to give notice to the appellants before approving the expropriation; and that, in any event, the proposed expropriation was contrary to the Official Plan which was in effect in the township in which the land in question lay, and hence in violation of s. 15 of The Planning Act, R.S.O. 1970, c. 296, were rejected.

APPEAL from a judgment of the Court of Appeal for Ontario, dismissing an appeal from a judgment of Stark J. Appeal dismissed.

Gordon F. Henderson, Q.C., and Brian A. Crane, for the plaintiffs, appellants.

Douglas K. Laidlaw, Q.C., for the defendant, respondent.

The judgment of the Court was delivered by

LASKIN J.—This case involves a point of first impression under The Expropriations Act, 1968‑69 (Ont.), c. 36, now R.S.O. 1970, c. 154. Under s. 4(1) of the Act, an expropriating authority must have the sanction of an approving authority to effect an expropriation, and under s.6, unless the Lieutenant Governor in Council directs otherwise, an owner whose land is sought to be expropriated has a right to demand a hearing on the intended expropriation before he is deprived of his land. The hearing is before

[Page 483]

an inquiry officer who is charged by s. 7(5) to inquire whether the taking “is fair, sound and reasonably necessary in the achievement of the objectives of the expropriating authority”. Section 7(4) obliges the expropriating authority to serve upon the parties to the inquiry, at least five days before the hearing date, a notice indicating the grounds upon which it intends to rely at the hearing. Obviously, this notice feeds the inquiry officer’s function. He is required by s. 7(6) to report to the approving authority (1) a summary of the evidence and arguments, (2) his findings of fact, and (3) his opinion on the merits of the application for approval with his reasons therefor. The report goes to the approving authority under s. 8, and the main issue in the present appeal is whether the prescriptions of that section were fulfilled by the approving authority, having regard to the manner in which it acted with respect to the inquiry officer’s report.

The issue has a special character here because of the anomaly, a conscious expression of the Legislature, that the expropriating authority is also the approving authority. The respondent Board of Education, as an expropriating authority, proposed to take certain land, part of a highly productive farm owned by the appellants, for a new secondary school in a rural area. By virtue of s. 5(l)(b) of The Expropriations Act, it was put in the position of applying under s. 6(1) for its own approval for its intended expropriation. The same anomaly exists in the case of a municipal expropriation, in which case the approving authority is the council of the expropriating municipality. The scheme of s. 5, under which approving authorities are specified, is that in general the approving authority is the Minister responsible for the administration of the Act in which the expropriating power is given, and in any unprovided for case the approving authority is the Minister of Justice and Attorney General.

[Page 484]

Section 8 reads as follows:

8 (1) The approving authority shall consider the report of the inquiry officer and shall approve or not approve the proposed expropriation or approve the proposed expropriation with such modifications as the approving authority considers proper, but an approval with modifications shall not affect the lands of a registered owner who is not or has not been made a party to the hearing.

(2) The approving authority shall give written reasons for its decision and shall cause its decision and the reasons therefor to be served upon all the parties within ninety days after the date upon which the report of the inquiry officer is received by the approving authority.

(3) The approving authority shall certify its approval in the prescribed form.

The report that came to the respondent Board as approving authority was a comprehensive document in which the inquiry officer faithfully carried out the duties laid upon him by s. 7(6). He found that the proposed expropriation was indefensible, that it was neither fair nor sound and that on the merits it should not be approved. When the chairman of the respondent Board received, on or about September 17, 1970, a copy of the report, which was dated September 8, 1970, he conferred with one Wood, director of education for the Board who had been its chief witness at the hearing, and with the solicitor for the Board who had represented it at the hearing. The chairman instructed the solicitor to prepare reasons for rejecting the inquiry officer’s opinion on the proposed expropriation. This was done, and the reasons were before the Board when it met on September 21, 1970, in private in committee of the whole to consider the expropriation as approving authority. Both Wood and the solicitor were present. The meeting lasted about one hour and one-half, and it culminated in acceptance of the solicitor’s reasons and in the approval of the expropriation. The only change in the reasons was substitution of the word “majority” for the word “unanimous” because two members of the sixteen who were present dissented. Following the private meeting the Board met in public for some ten minutes to formalize what it had done in committee of the whole. The appellants were

[Page 485]

not at the public meeting and the evidence does not show whether they had any notice thereof.

Shortly afterwards the appellants brought a declaratory action to annul the expropriation and also sought damages. Stark J. dismissed the action and his judgment of dismissal was affirmed on appeal without written reasons. In this Court, counsel for the appellants contended that the Board had failed to “consider” the inquiry officer’s report as required by s. 8(1); that it was also obliged to act on the report at a public meeting and failed to do so; that because of certain new material and representations that were before it, beyond what was in the report, it was under a duty to give notice to the appellants before approving the expropriation; and that, in any event, the proposed expropriation was contrary to the Official Plan which was in effect for the Township in which the land in question lay, and hence in violation of s. 15 of The Planning Act, R.S.O. 1970, c. 296, which forbids any public work (allegedly including a school) not in conformity with an effective Official Plan.

The Court did not find it necessary to hear counsel for the respondent Board on the legality of the expropriation under the Official Plan. It was satisfied at the hearing that since use of rural areas for schools was a permitted use, although qualified by a provision that they not detract from the maintenance of the rural environment, there was, in the circumstances, no contravention of the Official Plan, especially when by its very terms its provisions were to be flexibly interpreted.

I am also of the opinion that the respondent Board as an approving authority was not under any statutory or other obligation to consider approval of an expropriation at a public meeting. Section 47(1) of The Schools Administration Act, R.S.O. 1970, c. 424, requiring meetings of a school board, except meetings of committees including a committee of the whole,

[Page 486]

to be open to the public, cannot be read into The Expropriations Act to govern the school board’s proceedings thereunder. That Act does not expressly say so, nor do any of its provisions import a duty upon a school board not resting upon the generality of approving authorities, to carry out its approving function in public. It is fallacy to say that the respondent Board sitting as an approving authority sits as a school board; rather, being a school board with expropriating powers, it has been legislatively designated as an approving authority.

The remaining two points raised by appellants’ counsel are more formidable. They are based on a reference to the grounds upon which the inquiry officer disapproved of the proposed expropriation, a reference to the contrary reasons of the Board’s solicitor which became the statutorily-required reasons of the Board in giving its approval to its expropriation, and a reference to the material that was before the Board when in committee of the whole; and they involve too an appeal to aspects of what is conveniently and compendiously called natural justice, a duty of procedural fairness to persons in the course of lawful interference with various of their interests, including interests in property.

The approving authority does not sit under s. 8 as an appeal tribunal nor as a tribunal of review of the inquiry officer’s report. It has an independent power to approve or disapprove the proposed expropriation, or to approve it with modifications, subject only to a duty to “consider” the inquiry officer’s report. It is not bound by either the findings of fact nor by any interpretation of law in that report. That is plain from s. 8 in its relation to the scheme of the Act as a whole.

What, then, is involved in its duty to “consider” the report? Certainly, the Board must have the report before it, and the evidence shows that

[Page 487]

each member had a copy at least three days before the approval meeting. Although the word “consider” imports a time element, I do not think a Court can or should impose any arbitrary temporal standard any more than it can or should monitor the degree of required concentration upon the contents of the report. In the present case, the Board was in session on the report in committee of the whole for about one hour and one-half, and had before it a critical set of opposing reasons which it ultimately accepted. I see nothing improper, in view of the independent power of the Board as an approving authority, in its having a pre-packaged opinion before it prepared by its solicitor. Unless the good faith, indeed the honesty, of the members of the Board is called in question, the fact that they are briefed or counselled in advance to a rejection of the report is not a ground for concluding that they did not “consider” it. I do not read the duty to “consider” as imposing upon an approving authority an obligation, if its decision is adverse to the opinion expressed in the report, to show by its written reasons that its adverse decision is reasonably founded and hence run the risk of review by the Courts if they should conclude that it is not.

Counsel for the appellants did not impugn the good faith of the Board. Objectively, the record in this case indicates that the chairman of the Board, its solicitor and the director of education had strong opinions before the Board met as an approving authority that the expropriation should proceed. If there is an appearance of unfairness from the course of the approval proceedings, it lies in the ambivalent position into which the Board was put by the terms of The Expropriations Act. The Legislature has, in my opinion, left little room for judicial supervision of an approving authority’s discharge of its duty to approve or disapprove an expropriation; and, short of an attack upon good faith, I see no ground for enlargement of the scope of judicial supervision merely because the Legislature has

[Page 488]

seen fit to make the respondent Board “judge in its own cause”. It is not for this Court in such a case, and in respect of such a function in relation to expropriation, to revise legislative policy. The Court is given no role to review the merits of an expropriation proposal, and, for reasons which follow, the Board’s function as an approving authority is not one which, on the facts of the present case, is subject to audi alteram partem principles.

Counsel for the appellants did not contend that the respondent Board was, as a general rule, obliged to hold a hearing in connection with its consideration of the inquiry officer’s report, or obliged to give notice to owners about to be expropriated to enable them to make further representations. (If, in fact, such representations should be made, it would be for the Board to decide on the weight, if any, that they should receive.) In the present case, in addition to the inquiry officer’s report, the Board had before it an interim report on soil conditions at the site of the proposed new school, a letter from the architects and a petition of a considerable number of local residents opposing the expropriation. Because of the first two of these matters, counsel for the appellants contended that his clients should have had an opportunity to appear or make further representations, especially when the staff protagonists for expropriation, its solicitor and the director of education, were on hand to lend persuasion to the approval of the expropriation.

Whether a narrow or a broad view be taken of a duty arising in an approving authority in certain circumstances to hear or accept representations from about-to-be expropriated owners, the matter comes down to the question whether the approving authority is strictly limited in its function to the report of the inquiry officer if it would avoid a further hearing or a duty to receive further representations. I do not think

[Page 489]

that there can be any such limitation but rather that the answer depends on what is before the approving authority in addition to the inquiry officer’s report. On the narrow view, as advanced by counsel for the appellants, namely, that what was before the respondent Board in addition to the report imposed upon it a duty to give the appellants an opportunity to make further representations, I must disagree. I do not regard either the material as to soil conditions or the architect’s letter, or both, as giving rise to an obligation to afford the appellants an opportunity to make further representations.

On the broad view, the governing statute does not limit the approving authority in what it may consider so long as it considers the inquiry officer’s report, and I would not read any limitation into s. 8. To use case-honoured terminology, the Board as an approving authority is neither a judicial nor a quasi-judicial body, but is invested with the widest discretionary power to determine, subject only to considering the inquiry officer’s report, whether an expropriation should proceed. The sanction for a wrong-headed decision (absent bad faith), having regard to its duty to give reasons, is public obloquy not judicial reproof. I do not say, however, that in no circumstances would it be appropriate to fix an approving authority with a duty to hear or accept representations from owners whose lands are in danger of being expropriated. Such instances are likely to be rare but I would not exclude them. The present case is not in that category.

Function and role in which a statutory body is cast, relative to the legislation under which it operates, and in some cases the manner in which it discharges its function and role, govern the procedural duties to which it may be required to conform by the Courts, in the absence of express stipulation in the statute. This is what emerges from Franklin v. Minister

[Page 490]

of Town and Country Planning[1], from Calgary Power Ltd. and Halmrast v. Copithorne[2], and from Padfield v. Minister of Agriculture, Fisheries and Food[3], which were among the authorities upon which the parties relied. Of course, assessment of function and role involves judgment, and I have made mine evident in these reasons.

I would dismiss the appeal but, in view of the novelty of the issue and the dispositions below as to the merits and as to costs, I would make no order as to costs in this Court.

Appeal dismissed.

Solicitors for the plaintiffs, appellants: Yuffy & Yuffy, Windsor.

Solicitor for the defendant, respondent: Reginald E. Burnell, Windsor.