Vancouver (City of) v. Simpson, [1977] 1 SCR 71

Supreme Court of Canada

Vancouver (City of) v. Simpson, [1977] 1 S.C.R. 71

Date: 1976-01-30

City of Vancouver Appellant;

and

Derek G. Simpson Respondent.

1975: October 28; 1976: January 30.

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

ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA

Municipal corporations—Application by owner to subdivide certain property—Policy adopted by municipality for creation of park in area which included property in question—Approving officer refusing to approve subdivision on ground anticipated development thereof against public policy—Propriety of officer’s action—Land Registry Act, R.S.B.C. 1960, c. 208, s. 96.

The respondent was the owner of certain property which had a total frontage of 117.33 feet on Point Grey Road in the City of Vancouver and extended from that road to the waterfront of English Bay. The respondent wished to subdivide his property into two parcels, each having a frontage of 58.66 feet. The dimensions of the two parcels would not contravene the requirements of the relevant zoning and development by-law. The respondent obtained from the approving officer for Vancouver, on January 25, 1967, preliminary approval for the subdivision, which approval was subject to the subdivision control by-law and was revocable at any time.

On July 15, 1969, the Council of the City of Vancouver adopted a policy for the creation, over a long period of time, of a waterfront park in an area which included the respondent’s land. An offer to purchase the respondent’s property, which was in an area of top priority for selective purchases, was made by the appellant, but was rejected. The Council subsequently decided against expropriation. It was decided to apply the residue of a purchase fund as properties were offered for sale.

On May 11, 1973, the respondent’s solicitors applied for subdivision of the property. The application was refused under s. 96 of the Land Registry Act, R.S.B.C. 1960, c. 208, because in the view of the approving officer “it would be against the public interest to allow further subdivision in this location, which would permit a more intensive development in a proposed public park area.”

The respondent appealed the approving officer’s decision to a judge of the British Columbia Supreme Court

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pursuant to the provisions of s. 293 of the Vancouver Charter. The appeal was dismissed. The respondent appealed to the Court of Appeal for British Columbia and that Court, by a majority of two to one, allowed the appeal. With leave, the appellant appealed to this Court.

Held (Spence J. dissenting): The appeal should be allowed.

Per Martland, Judson, Ritchie and Dickson JJ.: Where, as held by the trial judge, there is direct statutory foundation for the ground given for the decision to approve or disapprove an application for subdivision, and where it is not shown that that decision, despite its impact on an individual, was made in bad faith, or with the intention of discriminating against that individual, or on a specious or totally inadequate factual basis, there should be no interference by the Court with municipal officials honestly endeavouring to comply with the duties imposed on them by the Legislature in planning the coherent and logical development of their areas.

In the present case there was no question as to the legal power of the approving officer to refuse permission for a subdivision if he was of the opinion that the anticipated development of the subdivision would be against the public interest. The contention that his decision was made with a view to reducing the value of the property prior to possible expropriation was rejected.

On the issue as to whether the approving officer had acted improperly, the evidence did not establish that he acted otherwise than in good faith in exercising the discretion given to him under the provisions of s. 96 of the Land Registry Act. Nor did the evidence establish that discrimination was exercised against the landowner.

Per Spence J., dissenting: The approving officer’s finding that the proposed subdivision was contra to public interest was based solely upon the circumstances that the appellant had determined that the lands in question as well as those on either side should eventually be park lands but had refused to make an acceptable offer to purchase them at that time, had decided to refrain from expropriating the lands, and had adopted a policy of preventing such subdivision as would permit an increase in their value. This policy simply resulted in a freeze on the value of the lands which would prevent any increase in value commensurate with the value of like lands in the area and which would deprive the owner of the present value resulting from such potential increase in value. Such a policy was, as held by the majority in the Court of Appeal, “partial confiscation or forfeiture under the guise of public interest”.

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It was the duty of the approving officer to carry out his duties in a fair and judicial manner and by taking the view of public interest which he did take he failed to so carry out his duties.

[Etobicoke Board of Education v. Highbury Developments Ltd., [1958] S.C.R. 196; Teubner v. Minister of Highways, [1965] 2 O.R. 221, distinguished]

APPEAL from a judgment of the Court of Appeal for British Columbia[1], allowing an appeal from a judgment of Kirke Smith J., by which an appeal from an order of an approving officer who had refused to approve a plan of subdivision was dismissed. Appeal allowed, Spence J. dissenting.

Terrance Bland and Robert Walker, for the appellant.

G.S. Cumming, Q.C., and R.K. Baker, Q.C., for the respondent.

The judgment of Martland, Judson, Ritchie and Dickson JJ. was delivered by

MARTLAND J.—The respondent is the registered owner of Lot 9 and Lot 10 except the East 80 feet of Block 24, District Lot 192 Group 1, N.W.D., hereinafter referred to as “the Lot”.

The Lot had a total frontage of 117.33 feet on Point Grey Road in the City of Vancouver and extended from that road to the waterfront of English Bay. He wishes to subdivide the Lot into two parcels, each having a frontage of 58.66 feet. The dimensions of the two parcels would not contravene the requirements of the relevant zoning and development by-law.

In order to deposit a subdivision plan in a Land Registry Office, pursuant to the Land Registry Act, R.S.B.C. 1960, c. 208, it must first be approved by the approving officer, or have been ordered to be registered by a judge of the Supreme Court. The “approving officer”, in the case of a municipality, is the municipal engineer, or else any person authorized by the council of the municipality. Section 96 of that Act provides:

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96. In considering an application before him for subdivision approval, the approving officer may hear objections from any interested persons, and may refuse to approve the subdivision if in his opinion the anticipated development of the subdivision would injuriously affect the established amenities of adjoining or adjacent properties or would be against the public interest.

The respondent obtained from the approving officer for Vancouver, on January 25, 1967, preliminary approval for the subdivision. By letter of February 19, 1968, the approving officer advised the respondent that the preliminary approval was still valid. Under the provisions of the subdivision control by-law, acceptance of a proposed subdivision or subdivision plan tendered for preliminary approval is not to be construed as approval of the subdivision and such acceptance is revocable by the approving officer at any time.

On July 15, 1969, the Council of the City of Vancouver adopted a policy for the creation of a waterfront park twelve blocks long which would become a link in a scenic drive around a large part of the Vancouver waterfront. The respondent’s Lot was within this area. It was contemplated that the ultimate purpose could only be achieved over a long period of time, but a purchase fund was set up and selective purchases of property in the area were contemplated in the meantime, so as to assemble property, use it for revenue until it was economically feasible to demolish and then, as funds became available, form a series of small sitting-out parks or look-out points.

The respondent’s Lot was in an area of top priority for selective purchases. An offer to purchase the Lot was made by the appellant to the respondent, but was rejected.

On February 6, 1973, the Council decided against expropriation of the Lot. It was decided to apply the residue of the purchase fund as properties were offered for sale.

On May 11, 1973, the respondent’s solicitors applied for the subdivision of the Lot. On August 7, 1973, the approving officer wrote to the respondent’s solicitors, in part, as follows:

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…on July 15, 1969, the Vancouver City Council adopted a policy for the allocation and use of funds for the purchase of property on the north side of Point Grey Road (from Alma Street to Balsam Street) for eventual waterfront park use.

The affected area was divided into ten areas of priority for the purpose of selective purchases.

The above described lots, now under application for subdivision approval, are located in priority area No. 1A, being a top priority area and our records indicate that the City has made an offer to purchase the subject property for park purposes.

It is therefore my opinion that it would be against the public interest to allow further subdivision in this location, which would permit a more intensive development in a proposed public park area.

I regret therefore that your application is refused under Section No. 96 of the Land Registry Act and your attention is drawn to your rights-of-appeal under Section No. 293 of the Vancouver City Charter.

The appeal procedures must be commenced within twenty-one days after the receipt of this refusal.

The respondent’s Lot is located in an (RT-2) Two-Family Dwelling District. The effect of subdivision would be to permit development on each of two lots (as opposed to one lot) of buildings which could be used for two-family dwellings. The cost of any proposed development is unknown. There is no evidence of the cost or extent of development on neighbouring properties.

There is no evidence as to the amount by which subdivision would increase the value of the land.

The respondent appealed the approving officer’s decision to a judge of the British Columbia Supreme Court pursuant to the provisions of s. 293 of the Vancouver Charter. The appeal was dismissed.

The respondent appealed to the Court of Appeal for the Province of British Columbia and that Court, by a majority of two to one, allowed the appeal.

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The appellant obtained leave to appeal to this Court.

The reasons of Kirke Smith J. for dismissing the respondent’s appeal from the decision of the approving officer are as follows:

…I start from the premise that on an appeal of this nature it is at least as true today as it was in 1954 (per Coady, J. in Re Land Registry Act; Re Proposed Subdivision (1955), 15 W.W.R. 143) that:

“There are many reasons why municipal corporations should have and are given a measure of control over proposed subdivisions and the court should not on appeal lightly interfere with the decision of the approving officer.”

Where, as here, there is direct statutory foundation for the ground given for the decision to approve or disapprove, and where it is not shown that that decision, despite its impact on an individual, was made in bad faith, or with the intention of discriminating against that individual, or on a specious or totally inadequate factual basis, there should, in my opinion, be no interference by the court with municipal officials honestly endeavouring to comply with the duties imposed on them by the Legislature in planning the coherent and logical development of their areas.

In the Court of Appeal, Carrothers J.A., who delivered the reasons of the majority, quoted the second paragraph of the passage cited above and went on to say:

A careful analysis of the facts of a particular case ought to show whether the decision meets these standards of correctness and it would only be in circumstances clearly indicating a wrong or improper decision that the decision ought to be interfered with. It ought not to be interfered with lightly, Re Land Registry Act; Re Proposed Subdivision (1955), 15 W.W.R. 143.

The very wide discretion given to the approving officer in respect of granting or withholding approval of a subdivision plan must also be exercised judicially and reasonably and he must not abuse or exceed these powers, and if the discretion is so exercised it cannot be interfered with, The Board of Education for the Township of Etobicoke et al. v. Highbury Developments Limited, [1958] S.C.R. 196; Re District of Delta (1961), 27 D.L.R. (2d) 65; and Westminster Corporation v. London and North Western Railway Company, [1905] A.C. 426.

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He did not find that there had been any bad faith on the part of the approving officer. The basis of his judgment is that “there was discrimination against an individual and inadequate factual support for the refusal”.

In respect of the question of discrimination he said:

But what the appellant [now respondent] is attempting to do is develop his property in the same manner and to the same intensity as his neighbours’ properties have been developed.

There is no evidence that approval was given by the approving officer for any subdivision of land in the proposed park area after the city’s policy had been declared in 1969. The respondent was not singled out for discriminatory treatment by the approving officer. That officer, under the provisions of s. 96 of the Land Registry Act was called on to form an opinion as to whether, after the enunciation of the park policy, the anticipated development of the subdivision would be against the public interest. That anticipated development would contemplate on each of the two parcels a one-family dwelling, a two-family duplex dwelling, or a two-family semi-detached dwelling. The park policy contemplated, in due course, the demolition of buildings in the park area. The approving officer formed the opinion that it would be against the public interest to allow further subdivision which would permit a more intensive development in the park area.

The majority judgment states that the refusal of the right to subdivide is in derogation of common law rights. The point is, however, that it was the Land Registry Act which curtailed common law rights. The enactment of that statute took away a free right to subdivide. The landowner has no right to subdivide save subject to the approval of the approving officer, who is required by the Act to determine if the contemplated development would be against the public interest. The very exercise of the power given to the approving officer by the Act must necessarily curtail the landowner’s right to subdivide. To contend that he cannot be said to exercise that power reasonably if such curtailment of rights results is to contend that the approving

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officer cannot perform the duty imposed upon him by the Act.

It was contended that the decision of the approving officer was made with a view to reducing the value of the Lot prior to possible expropriation. There is no evidence as to the value of the Lot, unsubdivided, or of the value the two parcels would have after subdivision. There is no evidence that the respondent intended to develop the parcels himself. We do know that the respondent had obtained a preliminary approval for subdivision almost two and one-half years before the park policy was enunciated, but no further step had been taken until 1973.

Subdivision of the Lot might well have enhanced its value as raw land, but, in the light of the finding of Kirke Smith J. and of the Court of Appeal that mala fides is not suggested, we are entitled to assume that the approving officer’s opinion was reached on the basis that further development of the Lot was against the public interest.

Counsel for the respondent referred us to a passage from the judgment of Roach J.A. in Teubner v. Minister of Highways[2], at p. 233:

I agree with counsel for the respondent that there is a real difference between zoning down a property by positive action to reduce its value before expropriation (the Gibson case) and refusing to give some consent which the owner needs to increase the value and without which it has a lower value. However, in so agreeing I do not want to be taken as implying that the expropriating authority by withholding the consent or permit can contain the value of the expropriated property below that which it would have if the permit or consent were given, it being understood, of course, that were it not for the imminent forcible taking it would have been given provided that there is no legal restraint, such as we have here on the right of the owner to receive it. The power of expropriation is an extraordinary power and a government or its agent in which that power is vested has a corresponding extraordinary obligation to exercise it with a sense of complete fairness. To withhold a permit or consent that would otherwise be given for the express purpose of containing value would not, in my opinion be dealing fairly.

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The Teubner case was dealing with an expropriation of land. The statement in the second sentence contains the important proviso “provided that there is no legal restraint, such as we have here on the right of the owner to receive it”.

In that case the lands adjoined the King’s Highway and The Highway Improvement Act prohibited, except under permit from the Minister of Highways, the placing of certain structures within a certain distance from the highway. The Court held that the Minister’s right to refuse a permit was a disadvantage imposed on the claimant as owner, which adversely affected the value of the frontage. In the next paragraph following the above quotation it is said:

In the instant case, however, the Minister did not withhold the permit for the express purpose of limiting or depressing the value of the expropriated lands though unquestionably that was the result. The Legislature has seen fit to impose that prohibition on all lands adjoining the King’s Highway and has left to the discretion of the Minister whether or not there should be any alleviation against it. In the exercise of that discretion it is the function of the Minister to decide in the public interest the effect on the public services under his jurisdiction of conditions and circumstances as they presently exist or may, in his opinion, later arise. If he decides that, having regard thereto, it is in the public interest that there should be no alleviation it is not only his right but his duty to refuse a permit that would grant such relief. The interest of the owner that the prohibition should be removed or modified cannot prevail over the public interest that it should not.

The present case is not one of expropriation. The Land Registry Act has imposed a disadvantage on subdivision unless the consent of the approving officer is obtained and in s. 96 has empowered that officer to refuse approval to a subdivision if, in his opinion, it would be against public interest. This is not a case of an expropriating municipality refusing a consent for the express purpose of containing the value of land which it is expropriating.

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We were also referred to a passage from the judgment of Cartwright J., as he then was, in Etobicoke Board of Education v. Highbury Developments Ltd.[3], at p. 200, which is cited in the reasons of my brother Spence.

This case involved the interpretation of s. 26 of The Ontario Planning Act, 1955. The issue was as to whether approval of a draft plan which had complied with the requirements of that Act could be withheld on the ground that it was “premature” until the developer had agreed to sell the school sites shown on the plan to the school board at a price fixed by that board. It was held that the section did not permit the Minister or the Ontario Municipal Board to do this. It is in this context that the passage from the judgment of Cartwright J. was written.

In the present case there is no question as to the legal power of the approving officer to refuse permission for a subdivision if he is of the opinion that the anticipated development of the subdivision would be against the public interest. There is no issue as to the legal power of the approving officer to do what he did. The only issue is as to whether he acted improperly.

On this issue I agree with what was said by Maclean J.A. in his dissenting reasons in the Court of Appeal:

In my view, the evidence does not establish that the approving officer acted otherwise than in good faith in exercising his discretion given to him by the statute. Further, the evidence does not in my opinion, establish discrimination exercised against the landowner.

I agree with the reasons of Kirke Smith J. I would allow the appeal and restore his judgment. The appellant should have its costs in this Court and in the Court of Appeal.

SPENCE J. (dissenting)—This is an appeal from the judgment of the Court of Appeal for British Columbia pronounced on of January 14, 1974. By that judgment, the said Court of Appeal allowed an appeal from the judgment of Kirke Smith J. pronounced on September 20, 1973. By the latter judgment, Kirke Smith J. had dismissed an appeal

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from the order of an approving officer who had refused to approve a plan of subdivision.

The respondent Derek Simpson was the owner of two lots, Nos. 9 and 10, on Point Grey Road in the City of Vancouver which had a total frontage of 117.33 feet. The respondent proposed to subdivide this property into two residential lots lying between Point Grey Road and the waterfront each of which would have a width of 58.66 feet and each of which would substantially exceed the minimum dimensional standards called for by the applicable zoning and development by-law. The property is part of a 12-block-long strip of waterfront properties stretching along the southerly shore of English Bay. The Council of the appellant since at least September 1966 had under consideration a scenic waterfront drive around the edge of English Bay and stretching from Balsam Street to Alma Road. Such a waterfront drive would, of course, entail the taking into ownership by the appellant of the respondent’s lands and those of his neighbours.

The respondent applied originally for the desired subdivision in December 1966. Preliminary approval was granted on January 25, 1967, subject to the relocation of the large residence standing on the lands so that the dividing lot would not bisect it. Such preliminary approval was made expressly subject to revocation and the existence of the proposal for a scenic driveway was drawn to the attention of the respondent. On February 19, 1968, the Director of Planning for the appellant confirmed to the respondent that the preliminary approval could be considered in effect for one further year but at the same time drew to the attention of the respondent the provisions of the city’s subdivision control by-law that the acceptance of any proposed subdivision should not be considered as approval of such subdivision and such acceptance was revocable by the approving officer at any time.

On July 4, 1969, the city planning department in a report addressed to the mayor and members of Council of the appellant as to the acquisition of property on Point Grey Road stated the objective as follows:

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Objective:

The objective of this report is to suggest a relatively firm policy for the allocation and use of available funds for the selective purchase of property on the north side of Point Grey Road from Alma Street to Balsam Street for eventual waterfront park use.

Several paragraphs of that report are of considerable importance in the present appeal, so it was said:

Notwithstanding that the purchase of the larger sites will require the greatest outlay initially, the cost per square foot of site is much lower than in the case of purchasing smaller lots, and almost twice the amount of park area can be acquired for each dollar spent in the easterly section than in the area west of Bayswater.

The larger sites are, in many cases, capable of subdivision and redevelopment under the present RT-2 Two Family Dwelling District zoning, and present a greater “threat” in this respect than the smaller lots in the westerly section; where the incentive to redevelop is less as the smaller lots are, in most cases, already developed to full use.

and:

The estimated market value may increase if purchases are delayed, because land costs are likely to increase in spite of the aging of improvements. Property purchased early in a programme could be rented without difficulty and the revenue received could be applied to reduce the initial outlay to some extent.

If the ultimate aim is for the City to own all of the upland property it is obvious that it can only be achieved over a relatively long period. In the meantime, it would be possible, by selective purchases, to assemble property and use it for revenue until it was economically feasible to demolish, and then as park development funds become available, form a series of small sitting-out parks or look-out points with off-street parking. Ultimately, these areas might be extended and linked up to form a continuous park strip, thus completing another link in the foreshore acquisition and scenic drive around a large part of the Vancouver waterfront.

To achieve this aim and to formulate a firmer policy, the study area has been divided into ten groups (see Map A attached hereto) in order of priority. From these, offers

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to purchase or acquisitions to prevent new development or extensive additions may best be selected. The order of preference can only be taken as a guideline for selection and obviously some individual cases will need to be considered on behalf of their merits, especially in the case of extensive alterations and additions. Accumulative purchases may also alter the overall order of preference as time goes on, and the situation will require frequent review.

According to the schedule to that report, the respondent’s property was in the area of “top priority”, that is, it was in the area which would be selected first for purchase by the city. An offer to purchase was made by the appellant to the respondent but the price not being satisfactory the respondent refused to accept the offer.

On February 6, 1973, the City Council, by a resolution at an “In Camera” meeting, determined that the city should not proceed to expropriate the properties mentioned in the report which included the respondent’s property.

On February 14, 1973, the supervisor of property and insurance of the appellant wrote to the respondent’s solicitors informing them of the above decision and concluding:

As a result of this resolution the City’s position will be that the matter is considered closed unless your clients are prepared to accept the respective offers made to them in writing by this office during September and October last year.

I trust this explains the City’s position in this matter.

The appellant having made no offer to purchase which the respondent would accept and having determined that it would not expropriate, the respondent had no other course available to him than to pursue his application for subdivision. This application for subdivision must be made to an official known as the “Approving Officer”. The approving officer was one H. Pickstone. Mr. Pickstone was also the deputy director of planning and civic development. Counsel for the appellant before this Court admitted that the approving officer was a civic employee and in no way constituted an independent tribunal. The approving officer disposed of the application for subdivision in his

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letter to the solicitor for the respondent dated August 7, 1973. That letter reads, in part:

However on July 15, 1969, the Vancouver City Council adopted a policy for the allocation and use of funds for the purchase of property on the north side of Point Grey Road (from Alma Street to Balsam Street) for eventual waterfront park use.

The affected area was divided into ten areas of priority for the purpose of selective purchases.

The above described lots, now under application for subdivision approval, are located in priority area No. 1A, being a top priority area and our records indicate that the City has made an offer to purchase the subject property for park purposes.

It is therefore my opinion that it would be against the public interest to allow further subdivision in this location, which would permit a more intensive development in a proposed public park area.

I regret therefore that your application is refused under Section No. 96 of the Land Registry Act and your attention is drawn to your rights-of-appeal under Section No. 293 of the Vancouver City Charter.

The appeal procedures must be commenced within twenty-one days after the receipt of this refusal.

It is, perhaps, illustrative of the approving officer’s lack of independence when, two months before, on June 8, 1973, the said approving officer, as deputy director of planning and civic development, had reported to the appellant that although the proposed subdivision met the minimum dimensional standards of the subdivision control by-law, he had already informed the solicitor for the respondent that he would not approve the subdivision on the ground that it was against public interest, the same ground as cited in his formal letter of August 7, 1973, which I have quoted, and continued:

My position is based on the fact that Council has not rescinded any resolution about the acquisition of property on Point Grey Road and, in fact, the City has made an offer which, in my view, confirms the City’s position. The fact that the offer has not been accepted by the owner does not, in my view, represent a withdrawal from the City’s position.

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The respondent appealed from this refusal to approve the subdivision and Kirke Smith J. dismissed that appeal but the Court of Appeal, by a majority decision, allowed the appeal and directed that the approval of the proposed subdivision should issue. The majority judgment was given by Carrothers J.A., and I find myself in complete agreement with his reasons.

Before turning to other issues, I should deal with art argument made by the appellant in this Court that no appeal to the Court of Appeal for British Columbia was open to the respondent and that, therefore, the decision of that Court reversing Kirke Smith J. was a nullity. We were informed that this argument had been submitted to the Court of Appeal for British Columbia but a careful scrutiny of the reasons given by both Carrothers J.A. for the majority and Branca J.A. dissenting reveals no reference to this argument. It may, therefore, be presumed that the argument had been rejected and surely the Court of Appeal of a Province is the proper Court to determine whether a right of appeal to that Court exists under the statutes of that Province. This is such a matter of practice and procedure in the Province that the view of the Court of Appeal of that Province should be final. However, were I of the view that the matter should be considered in this Court, I would refuse to accept the argument of the appellant. That argument depends on the provisions of s. 293 of the Vancouver Charter and s. 38 of the Court of Appeal Act, R.S.B.C. 1960, c. 82. Section 293 of the Charter provides, in part:

There shall be an appeal to a Judge of the Supreme Court in Chambers by any person who is aggrieved by the approval of, or the refusal to approve, a subdivision or resubdivision pursuant to a by-law made pursuant to section 292.

while s. 38 of the Court of Appeal Act provides:

Notwithstanding anything hereinbefore contained, where by any Act or Ordinance a single Judge of the Supreme Court is authorized to exercise appellate jurisdiction, such jurisdiction may still continue to be exercised, subject to such further right of appeal as may be given by the Act or Ordinance conferring such appellate jurisdiction.

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It is the submission of the appellant that since the Charter provided for an appeal only to a judge of the Supreme Court then s. 38 did not grant an appeal to the Court of Appeal as a further appeal had not been granted “by the Act or Ordinance conferring such appellate jurisdiction”. The short answer, of course, is that s. 38 of the Court of Appeal Act is not in any way a section limiting the jurisdiction of the Court of Appeal but rather a section retaining the appellate jurisdiction of a single judge of the Supreme Court when pre-existing statutes had granted appellate jurisdiction to such single judge.

The general jurisdiction of the Court of Appeal for British Columbia is conferred by s. 7 of the said Court of Appeal Act which provides, in part, as follows:

…And without restricting the generality of the foregoing an appeal lies to the Court of Appeal

(a) from every judgment, order, or decree made by the Supreme Court or a judge thereof, and whether final or interlocutory, and whether in respect of a matter specified in the Rules of Court or not;

Section 32 of the Interpretation Act, R.S.B.C. 1960, c. 199, which was in effect at the time of the judgment of Kirke Smith J., provided:

32. Notwithstanding the provisions of section 2, where by any Act of the Legislature judicial or quasi-judicial powers are given to a Judge or an officer of any Court of Record, whether individually or as a member of a class, those powers shall be deemed for all purposes to be given to the Judge or the officer to be exercised by him in his capacity as Judge or officer of the Court, as if the Court itself had jurisdiction in respect thereof and not as a persona designata, unless the Act contains express provision to the contrary.

Therefore, I am of the opinion that the jurisdiction of the Court of Appeal existed under s. 7 of the Court of Appeal Act and was in no way limited by the provisions of s. 38 of that Act.

The approving officer based his refusal of the approval of the plan for subdivision upon public interest and in his report to the appellant on June 8, 1973, referred to the applicability of this test under the provisions of s. 96 of the Land Registry

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Act. Before Kirke Smith J., the argument was submitted that the approving officer was confined to the provisions of the city subdivision by-law in considering whether or not he should approve a plan of subdivision and did not have available for application the said provisions of the Land Registry Act. Kirke Smith J. held that such provisions of the Land Registry Act were available to the approving officer in addition to the provisions of the zoning by-law and that there was no inconsistency between the two provisions. Carrothers J.A., in his majority reasons for the Court of Appeal for British Columbia, stated that that issue was not pursued in the Court of Appeal. It has not been dealt with in the argument before this Court and, therefore, I proceed on the basis that the provisions of s. 96 of the Land Registry Act, bringing into effect the test of public interest, were applicable to the consideration of the application for approval of the plan of subdivision.

The approving officer made it perfectly plain in his formal letter of August 7, 1973, and in his report to the appellant of June 8, 1973, the consideration upon which he based his finding of public interest, reciting the policy adopted for the use of funds for the purchase of property on the north side of Point Grey Road and that the lands in question were in the priority area for first acquisition. He concluded, “It is therefore my opinion that it would be against the public interest to allow further subdivision in this location, which would permit a more intensive development in a proposed public park area”. This decision was made by the approving officer who was also the deputy director of planning and civic development, and would certainly have been made in the light of the report of his senior, the director of planning, who had noted, in his report of July 4, 1969, that nothwithstanding that the purchase of the larger sites required the greatest outlay initially, the cost per square foot of the site was much lower than in the case of purchasing smaller lots and that at least twice the amount of park area could be acquired for each dollar spent in the case of such smaller lots. In short, the approving officer’s finding that the proposed subdivision was contra to public interest is based solely upon the circumstances that the appellant had determined that

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these lands as well as those on either side should eventually be park lands but had refused to make an acceptable offer to purchase them at that time, had decided to refrain from expropriating the lands, and had adopted a policy of preventing such subdivision as would permit an increase in their value. This policy simply resulted in a freeze on the value of the lands which would prevent any increase in value commensurate with the value of like lands in the area and which would deprive the owner of the present value resulting from such potential increase in value.

Carrothers J.A. described such a policy as “partial confiscation or forfeiture under the guise of public interest” and I concur in such a description. It must be remembered that the appellant determined to refrain from expropriation in its “in camera” session of February 1973. Had the appellant proceeded to expropriation, then the arbitral tribunal in fixing the compensation for such expropriation would have had to assess an amount for the present value of the potential increase in the owner’s lands, and the owner, apart from this policy, submitted a plan of subdivision which was within the by-law.

It is true that the approving of the plan of subdivision might result in a higher cost of acquisition to the city but that is far from saying that it is a proper finding of public interest to make a decision based solely on the desire to hold down and, in my view, to reduce the value of lands to the benefit of taxpayers generally but to the detriment of the particular taxpayer whose lands were being considered.

In Teubner v. Minister of Highways[4], Roach J.A., giving judgment for the Court of Appeal for Ontario, said at p.233:

I agree with counsel for the respondent that there is a real difference between zoning down a property by positive action to reduce its value before expropriation (the Gibson case) and refusing to give some consent which the owner needs to increase the value and without

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which it has a lower value. However, in so agreeing I do not want to be taken as implying that the expropriating authority by withholding the consent or permit can contain the value of the expropriated property below that which it would have if the permit or consent were given, it being understood, of course, that were it not for the imminent forcible taking it would have been given provided that there is no legal restraint, such as we have here on the right of the owner to receive it. The power of expropriation is an extraordinary power and the government or its agent in which that power is vested has a corresponding extraordinary obligation to exercise it with a sense of complete fairness. To withhold a permit or consent that would otherwise be given for the express purpose of containing value would not, in my opinion, be dealing fairly. I entirely agree with what Wilson J. said in that respect in the Nanaimo case.

In this Court, Cartwright J., as he then was, said in Etobicoke Board of Education v. Highbury Developments Ltd.[5], at p. 200:

I agree with Aylesworth J.A. that the discretion, wide though it is, must be exercised judicially and that it is not a judicial exercise of discretion to impose upon the applicant, as a condition of the giving of approval, an obligation the imposition of which is not authorized by the Act. I wish to adopt the following passage from the reasons of the learned justice of appeal:

I must conclude that the Ontario Municipal Board is in error in the construction it has placed on s. 26 and that its decision is without legal foundation. I think the error in the decision proceeds from failure to distinguish in the application of the Act between acquisition of school sites, which is not dealt with, and adequacy of school sites, which is, from a misapplication of the term “premature” as applied in the Act to a “proposed subdivision” and to a certain confusion of thought as between the terms, school sites and school facilities, the latter of which also is not within the purview of the Act.

The Act directly affects the common law right of the individual freely to subdivide his lands and sell lots therein and “the law is also well established that common law rights are not held to have been taken away or affected by a statute,… unless it is so expressed in clear language, or must follow by necessary implication, and in such cases only to such an extent as may be necessary to give effect to the

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intention of the Legislature thus clearly manifested.” Grant J.A. in delivering the unanimous judgment of the Court of Appeal in Re Stronach, 61 O.L.R. 636, at p. 640, 49 C.C.C. 336, [1928] 3 D.L.R. 216. If the Legislature intended, as I think it did not, to compel an owner seeking to subdivide his lands to accept a nominal or any price less than a fair price as established by arbitration, if necessary, for his lands agreed upon as adequate for school sites, then it has not said so either expressly or by necessary implication. For this reason also I think the Ontario Municipal Board erred in the construction which it placed on s. 26 of the Act.

Adopting those authorities, I am of the opinion that it was the duty of the approving officer to carry out his duties in a fair and judicial manner and that by taking the view of public interest which he did take he has failed to so carry out his duties.

I would, therefore, dismiss the appeal with costs.

Appeal allowed with costs, SPENCE J. dissenting.

Solicitor for the appellant: Terrance R. Bland, Vancouver.

Solicitors for the respondent: Cumming, Richards, Underhill, Fraser & Skillings, Vancouver.