Lamoureux v. City of Beaconsfield, [1978] 1 SCR 134

Supreme Court of Canada

Lamoureux v. City of Beaconsfield, [1978] 1 S.C.R. 134

Date: 1976-06-29

Édouard Lamoureux (Applicant) Appellant;

and

City of Beaconsfield (Respondent) Respondent.

1975: December 16 and 17; 1976: June 29.

Present: Martland, Ritchie, Pigeon, Dickson and de Grandpré JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR QUEBEC

Municipal law—Permit to construct service station—Mandamus—By-law against issuing permit when two-thirds of property owners within a radius of 500 feet object—Cities and Towns Act, R.S.Q. 1964, c. 193, s. 426.

Appellant filed an application for a writ of mandamus to compel respondent to issue a building and operating permit for a service station. He also requested that the provision of the zoning by-law which prevents the issuance of a permit if two-thirds of the owners of land situated within a radius of 500 feet of the proposed site object be declared void.

Appellant maintained that the provision in question was ultra vires because it purported to delegate to the interested property owners a power which could only be exercised by the council of respondent; moreover, according to appellant, this provision was discriminatory in its operation.

The Superior Court and the Court of Appeal of Quebec both dismissed these arguments, and appellant consequently appealed to this Court.

Held: (Pigeon J. dissenting): The appeal should be dismissed.

Per Martland, Ritchie, Dickson and de Grandpré JJ.: The provision in question is a part of a general zoning scheme. Respondent city can impose conditions upon the right of a landowner to use his land for the purposes of a service station. This by-law includes a condition precedent to the issuance of such permit, that being that adjacent landowners shall have an opportunity to object, and that, if two-thirds of them register their objections, the permit will not issue. The by-law does not reserve to the municipal council the discretion to grant or to refuse a permit after the required number of objections have been filed within the stipulated period. Neither does the by-law delegate to the neighbouring landowners a general power of decision as to whether or not service station

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permits shall issue. Instead the by-law takes their opinions into account in each particular case.

Even if appellant had been successful in obtaining a declaration that para. (c) of s. 6(1) of the by-law should be annulled, he would still not have been entitled to obtain his permit. Respondent, by the enactment of para. (c), clearly manifested an intention to consider service stations as being something apart from shops, and it cannot be said that it would have enacted para. (a) in the broad terms in which it did if it had not intended to impose restrictions upon the operation of service stations. Consequently, with the elimination of para. (c) the right to establish a service station in a commercial zone would disappear.

The provisions of para. (c) of s. 6(1)of the by-law are valid and in no way discriminatory. The provisions are of general application and the conditions required to be met to obtain a permit to erect a service station are the same for all applicants.

Per Pigeon J., dissenting: This is a delegation of power. The by-law has the effect of assigning to the owners of immovables within a radius of 500 feet the decision-making power which belongs to the municipal council. It is not correct to speak here of consultation of electors since, firstly, it is not an opinion which is requested but a decision-making power which is conferred, and secondly, not all the electors, but only a small group of property owners are consulted.

This by-law does not comply with ss. 380 and 426(1) of the Cities and Towns Act. Section 380 empowers the city council to “submit to the municipal electors any question that may be the subject of a decision of the council”. In the case at bar, the question was submitted to a group of electors, not to all the electors. Section 426(1) restricts the council’s power to pass and amend zoning by-laws. It is the statute which determines which owners can be called upon to vote on an amendment to the zoning by-law. The by-law impugned assigns the decision-making power to a group of electors who are property owners, which is not the group that is authorized to decide upon the approval of the by-law in question. It cannot be maintained that what is involved here is a condition to which the issuance of the permit was subject since no criterion of any kind was established. Paragraph (c) of subs. (1) of respondent’s by-law is therefore void because it was not within respondent’s power to enact it.

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Nevertheless, if the provision allowing service stations within certain limitations is held invalid, there is nothing left which permits them, and appellant cannot have his permit. The wording of this by-law makes it clear that respondent intended service stations to be governed exclusively by para. (c). Nothing authorizes the granting to appellant of a permit which the rest of the by-law does not authorize. He is only entitled to a judgment declaring para. (c) of the by-law void.

[Canadian Petrofina Ltd. v. City of Montreal, [1959] Que. Q.B. 211; Vic Restaurant Inc. v. City of Montreal, [1959] S.C.R. 58; City of Verdun v. Sun Oil Co. Ltd., [1952] 1 S.C.R. 222; Re Kiely (1887), 13 O.R. 451; R. v. Webster (1888), 16 O.R. 187; City of Outremont v. (Protestant) School Trustees for the Municipality of the City of Outremont, [1952] 2 S.C.R. 506, referred to.]

APPEAL from a decision of the Court of Appeal of Quebec[1] affirming the judgment of the Superior Court. Appeal dismissed, Pigeon J. dissenting.

Jacques Viau, Q.C., for the appellant.

J.W. Hemens, Q.C., for the respondent.

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

MARTLAND J.—This appeal is from the unanimous judgment of the Court of Appeal of Quebec, which affirmed the judgment at trial.

The appellant, the owner of land in the respondent municipality, applied to the respondent, on July 8, 1969, for a permit to construct and operate a service station on that land, which was situated in a commercial zone, C-1. His petition was considered by the municipal council, which proceeded with the publication of the application in accordance with the requirements of s. 6(1)(c)(i) of by-law 215. Section 6(1) provides as follows:

COMMERCIAL ZONES

Section 6: (1) In the Commercial Zones, marked C-l to C-4 and edged in red on the Zoning Plan, no land shall be used nor shall any building be erected or used wholly or in part except for the following purposes:

(a) shops, offices and recreational activities;

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(b) institutional purposes of a non-residential nature, save that ancillary living quarters for operational personnel may be provided;

(c) service stations—

(i) Every person, firm or company wishing to establish or to build a service station, (1) shall apply in writing for a special permit for this purpose. (2) Upon receipt of the written application the Town shall publicize this application in one English and one French daily newspaper as well as in the local paper. (3) In addition, the applicant shall display for a period of fifteen days in a conspicuous place on the site to be used as a service station a poster furnished by the Town stating that an application has been made for a permit so that the owners of immoveables described in the following paragraph may be apprised of such application, and, should they consider it advisable, object to the issuing of the permit requested.

For the purpose of the present by-law, the owners mentioned in the above paragraph are those who, according to the valuation roll in force on the date of the request for the permit, are qualified as owners of immoveable property or a portion of an immoveable property situated within a radius of 1,000 feet of any side line of the lot on which it is proposed to build the service station.

If two-thirds (in number) of the owners hereinabove referred to object and if such objection is filed with the Town in writing within a delay of fifteen days from the date of publication in the newspapers of the notice required in connection with the issuing of such permit, no such permit shall be granted. In the event that a permit is refused in accordance with the provisions of this section, no further application may be made for a permit for the same general site within a period of twelve (12) months of such refusal.

(ii) It is prohibited to establish or to build a service station within a radius of 750 feet from any side line of any land occupied by any building dedicated to divine worship or by any college, convent, school, orphanage or hospital.

(iii) It is prohibited to establish or to build a service station within a radius of 250 feet from any side line of any other service station.

The provisions of the present section shall not apply to any land which at the date of enactment of the

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present by-law was, according to the valuation roll in force, owned by an oil company.

The notice was published on July 18, 1969. The final day for filing objections was Monday, August 4. On August 11 the council was informed that 53 out of 73 qualified property owners had objected to the granting of the permit. The appellant was advised that a permit could not be granted. He then applied for a writ of mandamus to compel the issuance of a permit. He asked that para. (c) of s. 6(1) be annulled and that the respondent be ordered to issue a permit.

The appellant’s case is founded upon two submissions:

1. That the paragraph in question was ultra vires of the respondent municipality because it purported to delegate to the interested property owners a power which could only be exercised by the council of the respondent.

2. That the paragraph in question was discriminatory in its operation.

Both of these submissions were rejected by the courts below and the appellant has appealed to this Court. The Court of Appeal followed the decision of the Court of Appeal in Canadian Petrofina Limited v. City of Montreal[2], which dealt with an issue the same as that raised in the present case.

The power of the respondent to enact the by-law is stated in the judgment of Crête J.A., who delivered the judgment of the Court as follows:

[TRANSLATION] In the case before the Court, the Cities and Towns Act applies, in particular s. 426.

The provisions of this section which are relevant to the case at bar are the following:

426. The council may make by-laws:

1. Construction and inspection of buildings, chimneys, etc.

(1) To regulate the materials to be used in building and the manner of assembling the same; to prohibit any work not of the prescribed strength… to prescribe salubrious conditions and the depth of cellars and basements and the use to be made thereof; to classify, for purposes of regulation, dwellings, commercial establishments, industrial es-

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tablishments and all other immoveables, including public buildings; to regulate the places where each category of the aforesaid structures may be situated; to divide the municipality into zones of such number, shape and area as the council deems suitable for the purpose of such regulation and, with respect to each of such zones, to prescribe the architecture, dimensions, symmetry, alignment and destination of the structures which may be erected therein, the use of any immoveable located therein, the area and dimensions of lots, the proportion of lots which may be occupied by structures, the space which must be left clear between structures and the lines of lots, the space which, on such lots, must be reserved and arranged for the parking, loading or unloading of vehicles and the manner of arranging such space; to divide such zones, if expedient, into sectors for purposes of the polling provided for by this section;

He concludes, after citing a further portion of s. 426, as follows:

It appears clearly from the above provisions that respondent had the power to adopt a by-law providing for zones and the types of construction permitted in such zones.

The appellant’s submission is that the provision of the by-law which prevents the issuance of a permit for a service station if two-thirds of the owners of land situate within a radius of 500 feet and from the lot on which the construction is proposed object is ultra vires of the respondent, because this provision improperly delegates to such owners the powers of regulation which the respondent itself must exercise. In support of this argument the appellant relies upon the judgment of this Court in Vic Restaurant Incorporated v. The City of Montreal[3]. The by-law of the City of Montreal which was attacked in that case provided for the licensing of restaurants and estabishments licensed to sell liquor. It required, prior to the issue of a restaurant licence, the approval, among others, of the director of the police department. It was held that the City did not have the power, under its charter, to delegate to the director of police, or to anyone else, the power to fix the terms upon which licences might be granted.

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Reliance was also placed upon the earlier judgment of this Court in City of Verdun v. Sun Oil Company Ltd.[4] The company, in that case, had applied, pursuant to s. 76 of by-law 128 enacted by the appellant, for permission to erect a service station. Paragraphs (b) and (c) of s. 76 provided that:

(b) Any person who wishes to obtain such permission shall make an application to that effect to the Building Inspector who shall transmit a copy of such application to the City Clerk. The latter shall give at least ten (10) days public notice of said application by means of an advertisement in at least two local newspapers, one English and one French, in which the City usually publishes its advertisements, the said notice to be also posted by the applicant in a conspicuous place on the lot of land, building or premises proposed to be used for such purpose, so that the neighbouring proprietors or residents or other parties interested may have an opportunity of opposing the granting of such a permission. The above mentioned poster shall be supplied by the Building Inspector Department. No such application shall be entertained by the City unless notice thereof be previously given as hereinabove provided nor unless applicant binds himself, in writing, to equip the boilers, engines, motors or furnaces which he proposes to set up with smoke and gas consumers such as will efficiently free the same from smoke and all that may, in their use, be harmful to the public.

(c) Upon the receipt of any such application the Building Inspector shall inspect the lot of land, building or premises, or examine the plan of the building or premises proposed to be used for any of the purposes set forth in Section 76 of this By-Law and, if satisfied that such building or lot of land meets the requirements of this By-Law and that the permission applied for may be granted without in any way endangering life or property, he shall transmit a certificate to this effect to the City Council, which may, at its discretion, grant or deny the permission applied for.

The company complied with all the requirements of the section and the Building Inspector gave the required certificate. The application was rejected without any reasons being given. Apart from s. 76, the City had not adopted any by-law

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regulating the location of industrial and commercial establishments, nor had it created any zones.

The Court held that the provision in para. (c) above, which is underlined, purporting to give to the City Council discretion to grant or refuse a permit, was ultra vires of the City. The City had not regulated by legislation, but, instead, had attempted to give City Council the discretionary power, by resolution, to grant or refuse a permit.

The appellant also cited two Ontario cases, each the decision of a single judge. In Re Kiely[5], the court considered a by-law of the City of Toronto which governed the licensing of livery stables. It was held to be ultra vires because that power had, by statute, been given to the board of police commissioners. The court went on to add that the by-law, if not ultra vires, was objectionable because it required the consent of the majority of owners and lessees of property within the area of 500 feet of the stable to consent before a licence could be issued and this would constitute the persons required to consent the judges of the right which was asked.

The obiter dictum in the Kiely case was followed in R. v. Webster[6], but it may be noted that the by-law under consideration also required the approval of the Chairman of the Board of Works.

Both of these cases were decided long before the existence of zoning by-laws. The provision which is in question here is a part of a zoning by-law. Unlike the Vic Restaurant case, the by‑law does not confer a right of decision as to the granting or refusal of all applications for the erection of service stations to a municipal official, who may himself fix the terms for the granting of such permits. Unlike the City of Verdun case, the by-law does not give an unlimited discretion to the municipal council to decide whether or not any such permit should issue. This by-law spells out the conditions which are required to be met by an applicant for a permit in respect of a service station and states that, as a condition precedent to

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the issuance of such permit, adjacent landowners shall have an opportunity to object, and that, if a substantial majority of them register their objections, the permit will not issue. The by-law does not reserve to the municipal council the discretion to grant or to refuse a permit after the required number of objections have been filed within the stipulated period. This case also differs from the Verdun case in that the provision attacked is a part of a general zoning scheme.

It is of the essence of zoning legislation that limitations are imposed upon the right of a landowner to use his land in any manner which he chooses. The limitations are imposed for the benefit of other landowners. The respondent municipality could have excluded the use of lands in commercial zones for the purposes of a service station. This it did not do. It could impose conditions upon the right of a landowner to use his land for such a purpose, and this is what it did. It decided that the right to build or establish a service station would only exist if that use of the land were not opposed by a substantial majority of owners of land adjacent to the proposed site. The by-law does not delegate to them a general power of decision, as in the Vic Restaurant case and the City of Verdun case, as to whether or not service station permits shall issue. Instead the by-law takes into account, in each particular case, the wishes of adjacent landowners, who are the very people affected by the proposed use, as one of the conditions precedent to the obtaining of a specific permit. In my opinion this is in accord with the principle of zoning legislation and the provision was not ultra vires of the respondent municipality.

Even if the appellant had been successful in obtaining a declaration that para. (c) of s. 6(1) of the by-law should be annulled, I am not convinced that he would thereupon be entitled to obtain his permit. It would then be necessary for him to contend that the proposed use of his land was permissible because the service station constituted a shop within s. 6(1)(a). But the respondent, by enacting para. (c), even if in enacting it, it went beyond its powers, has differentiated between

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shops and service stations, and it cannot be said that it would have enacted para. (a) in the broad terms in which it did if it had not intended to impose restrictions upon the operation of service stations.

In The City of Outremont v. The (Protestant) School Trustees for the Municipality of the City of Outremont[7], this Court considered by-law 326 of the City of Outremont. Section 84 of that by‑law provided that only detached or semidetached cottages should be erected on certain streets in the city. Section 85 gave to the municipal council a discretion to permit the construction of churches, schools and hospitals in any place in the city. The School Trustees desired to erect, on two adjoining lots, an extension of a school which had been erected before the prohibition contained in s. 84 came into existence. The application for a permit for the extension was refused and the School Trustees took proceedings by way of mandamus to compel the issuance of the permit.

It was held that s. 85, giving the discretion to council, was ultra vires, as the city’s powers were to regulate the nature of buildings to be erected, and s. 85 did not regulate, but, instead, conferred a discretion on the council. The Court then went on to hold, with respect to the prohibition contained in s. 84, that it could not be said that the city, but for the provisions of s. 85, would have enacted the absolute prohibition in s. 84, because it was obvious that the city wanted cases within s. 85 to be treated differently. Consequently s. 84 was also held to be ultra vires of the city. Fauteux J. (as he then was) put the matter in this way, at p. 515:

[TRANSLATION] It appears clear to me that without the provisions of s. 85, the City would not have put the prohibitions enacted in s. 84 in such an absolute form, since as has already been indicated there was a manifest desire, in the first words of s. 85, to deal with the cases of churches, schools and hospitals separately, and exempt these cases from the operation of all other provisions, including those of s. 84. In any case, it is

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sufficient that it cannot be affirmed that, without the provisions of s. 85, the provisions of s. 84 would have had that absolute form. Section 84 must suffer the fate of s. 85, and like it must be considered ultra vires. For this reason, even assuming that ss. 84 and 85 applied to the case at bar, the City cannot use them against the application of the respondent corporation, as it did.

In that case the Court took into account the content of s. 85, which it held to be invalid, in considering the intended scope of s. 84. Similarly here, the respondent, by the enactment of para. (c), clearly manifested an intention to consider service stations as being something apart from shops. That being so, if para. (c) be deleted from s. 6(1), it could not be said that thereby the appellant would become entitled to erect a service station upon his land. With the elimination of para. (c) the right to establish a service station in a commercial zone would disappear.

If the provisions of para. (c) of s. 6(1) of the by-law are valid, as I think they are, there is, in my opinion, no basis for holding that they are discriminatory. The provisions are of general application. They define the conditions required to be met by an applicant who seeks to obtain a permit to erect a service station. The conditions are the same for all applicants, and there is no discrimination as between one applicant and another.

For these reasons, in my opinion, the appeal should be dismissed with costs.

PIGEON J. (dissenting)—This is an appeal from a decision of the Court of Appeal of Quebec, affirming the judgment of the Superior Court which dismissed appellant’s motion for a writ of mandamus. The object of this writ is to compel respondent to issue a building permit for a service station.

Appellant’s lot is in a commercial zone, but under the zoning by-law a permit for a service station cannot be issued unless the owners of the buildings located within a radius of 500 feet of the proposed site are consulted. If two-thirds of these owners object, the permit is refused. In the case at bar fifty-three owners out of a total of seventy-

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three objected, and consequently appellant was informed that his application for a permit had been refused.

Appellant’s only ground is that this special provision for service stations constitutes a delegation of the municipal power to pass by-laws, and that it is therefore invalid in accordance with the principle laid down by this Court in Vic Restaurant Inc. v. City of Montreal[8]. That case involved restaurant permits, and the power to refuse them had been delegated to the directors of certain municipal departments by a by-law providing that they would not be issued without the written approval of each of the directors of the departments concerned. In this particular case the director of the police department, one of the departments concerned, refused to give his approval. The decision of the Court of Appeal of Quebec[9], affirming the refusal of mandamus was reversed by a majority decision in which a review was made of Canadian cases on this question of municipal law, starting with Re Kiely[10]. The conclusion reached after a rehearing before the full Court is summarized as follows in the head-note:

The City of Montreal, in regards to the granting or withholding of licences, has the powers and only the powers vested in it by its charter. That charter does not authorize or purport to authorize the delegation to the director of police or to anyone else of the power to fix the terms upon which permits may be granted. The by-law is therefore in this respect beyond the powers of the council. The good government clause in s. 299 of the charter is no warrant for what is being attempted, since ss. 299 and 300 have granted specific authority to the Council in respect of the matter.

The by-law contains no directions to the director of police as to the manner in which he is to exercise the discretion given to him and accordingly he could refuse to give his approval upon any ground which he might consider sufficient. For the council to say that before the licence is to be issued the director, in his discretion, may prevent its issue by refusing approval is not to fix the terms but is rather an attempt to vest in the director

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power to prescribe the terms upon which the right to a licence depends.

In the case at bar the Court of Appeal relied essentially on its earlier decision in Canadian Petrofina Ltd. v. City of Montreal[11]. The section of the by-law at issue was practically identical to the one in question in the case at bar; it provided that this type of permit would not be granted if two-thirds of the municipal electors in the polling-subdivision objected. However, it should be pointed out that this decision was rendered on April 15, 1958 and is thus prior to the judgment of this Court in Vic Restaurant, which was issued on December 18, 1958. When the former decision was rendered, the case law of Quebec was the same case law this Court set aside a few months later. It is in this perspective that one must read what Rinfret J.A. said in Canadian Petrofina (at pp. 218-219), which was repeated by the Court of Appeal in the case at bar.

[TRANSLATION] I see nothing in this by-law which conflicts with the principles outlined above; this provision is neither discriminatory nor arbitrary nor a delegation of legislative powers to an unauthorized body.

It seems extraordinary to me to speak of delegation of discretionary power by the council in favour of the electors; in fact, the council is only the representative of the electors, and acts only on their behalf and in their stead.

One of the basic principles of our municipal system is that in matters of serious concern for the electors, the latter are to be consulted by the administrative authorities; where the elector’s interests are involved, it is quite natural that they should be consulted by means of a referendum—this is the spirit of the Municipal Code.

With respect, I do not see how it can be said that this is not a delegation of power. What is involved, if not deciding whether or not the permit will be granted? It is the city council which was given the power by statute and, under the by-law, it is a group of property owners which will decide in its stead. According to the Robert dictionary, to delegate is to entrust with a duty by transferring one’s power totally or partially. It is not correct to speak here of consultation of the electors, for two reasons. Firstly, it is not an opinion which is

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requested but a decision-making power which is conferred. Secondly, not all the electors are consulted, but only a small group of property owners.

Section 380 of the Cities and Towns Act (R.S.Q. 1964, c. 193), enacted in 1961 (9-10 Eliz. II, c. 84, s. 6), empowers the city council to “submit to the municipal electors any question that may be the subject of a decision of the council”. This provision means that a question may be submitted to all the electors—it does not permit a question to be submitted to a group of electors. This is quite a different thing, and it is apt to yield an entirely different result.

Subsection 1 of s. 426 governs zoning by-laws and restricts the council’s power to pass and amend them. A public meeting of the electors who are property owners must be held, and a poll must subsequently be held if this is demanded by the required number of electors. With regard to this poll, the subsection specifies the persons who have the right to vote, and in principle these are the owners of immoveables in the zone or sector to which the by-law applies. Thus it is the statute which determines who can be called upon to vote on an amendment to the zoning by-law. I cannot see how a by-law which assigns the decision‑making power to a group of electors who are property owners, which is not the group that is authorized to decide upon the approval of the by-law in question, may be considered to be in accordance with this legislation.

It was contended that what is involved here is not a delegation of power but a condition to which issuance of the permit was subject. In my opinion this argument fails to recognize the meaning of the words. There would be a condition if a fact or set circumstance were involved—in other words, if a criterion of some kind were established. In such case, as was decided in Vic Restaurant, there is no delegation of power. The municipal officer is simply called upon to make sure that the prescribed conditions are met. This is obviously what he is called upon to do when he compiles the objections made in accordance with the by-law at issue. Therefore, it cannot be said that power is delegated to this municipal officer. However this

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does not mean that there is no delegation of power, since the by-law has the effect of assigning to the owners of immoveables within a radius of 500 feet the decision-making power which belongs to the municipal council. Delegation of this power to a group, not an individual, is still a delegation.

I have already noted that in Vic Restaurant the Court relied, inter alia, on Re Kiely. It should be pointed out that the by-law which was declared invalid in that case required the consent of the majority of property owners and tenants within a 500-foot radius for certain types of building. A decision along the same lines was rendered recently regarding a by-law which required the consent of property owners within 100 feet: Re Davies and Village of Forest Hill[12]. The following is an extract from p. 395:

It is, I think, quite clear that the municipalities of Ontario are creatures of the Provincial Legislature. Such powers as they have are powers delegated to them under the general powers of legislation conferred on Provincial Legislatures by s. 92 of the B.N.A. Act and any other enabling sections of that Act. The by-law provides that, where the available pool area is less than 2,500 sq. ft., a permit will be issued only if, in each such case, consent in writing to the construction and maintenance of the pool has been given by the registered owners of any or all lots, any part of which is within 100 ft. of any part of the available pool area.

It is to be observed that the power to pass this by-law is conferred on the council of the municipality and no power to delegate this power is conferred. It would appear to me that the provision of the by-law, where there is available pool area of less than 2,500 sq. ft., is delegated by this by-law to the registered owners of any and all lots, any part of which are within 100 ft. of any part of the available pool area.

The matter was considered as early as 1887, in the case of Re Kiely, 13 O.R. 451. The City of Toronto had passed a by-law in respect of the establishing and keeping of livery, trading or sales stables and made it unlawful unless and until a person doing so had procured the consent in writing of a majority of the owners

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and lessees of the real property situate in an area of within 500 ft. of the proposed site for such stables.

For these reasons I am of the opinion that it must be said that the provision of the municipal by-law contested by appellant is void because it was not within respondent’s power to enact it.

This does not mean, however, that appellant is entitled to the permit he is requesting, since I still have to consider what is the consequence of the invalidity of the contested provision. Is appellant justified in maintaining that since it is invalid, he is entitled to the building permit he is requesting? Vic Restaurant involved a permit for operating a restaurant. No one could assume that the Montreal City Council intended that if the provision requiring the approval of certain department directors was invalid, the operation of all restaurants in its territory would be prohibited. It was therefore obvious that if the clause involving delegation was declared invalid, the rest of the by-law should stand, and consequently the illegal clause should simply be deleted. The right to a permit without the illegal restriction was therefore to be recognized.

In the case at bar the situation seems to me to be different. Under subs. 1 of s. 426 the city has a power to pass by-laws which enables it to prohibit in each zone or sector of the municipality any types of construction it does not consider suitable. Here it has fully availed itself of this power by enacting at the beginning of the by-law in question:

Section 2: In the territory of the Town, no land shall be used nor shall any building be erected or used, wholly or in part, except in conformity with the provisions of this by-law.

Here is the definition of what is permitted in commercial zones:

Section 6: (1) In the Commercial Zones, marked C-l to C-4 and edged in red on the Zoning Plan, no land shall be used nor shall any building be erected or used wholly or in part except for the following purposes:

(a) shops, offices and recreational activities;

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(b) institutional purposes of a non-residential nature, save that ancillary living quarters for operational personnel may be provided;

(c) service stations…

It is following the words “service stations” in paragraph (c) that one finds the contested provision. The wording of this by-law makes it clear that its authors intended service stations to be governed exclusively by this para. (c). In these circumstances I do not see how one can, by declaring this para. void, alter para. (a) so as to include in it something it did not contain.

I think that in the circumstances it must be said that if the provision allowing service stations within certain limitations is held invalid, there is nothing left which permits them. The rule which the city council established at the beginning of this by-law is that in future only what is authorized can be built. Since the only provision authorizing service stations has been eliminated, nothing authorizes the granting to the applicant of a permit which the rest of the by-law does not authorize. In short, we are faced with a situation where in order to obtain a building permit for service stations the by-law must be amended.

In this connection I should refer to another decision of this Court concerning the issuance of a building permit refused by the municipality, namely City of Verdun v. Sun Oil Co. Ltd.[13]. The contested provision was contained in a by-law covering various categories of buildings, including service stations. After providing for public notices, the by-law provided as follows:

(c) Upon receipt of any such application the Building Inspector shall inspect the lot of land, building or premises, or examine the plan of the building or premises proposed to be used for any of the purposes set forth in Section 76 of this By-Law and, if satisfied that such building or lot of land meets the requirements of this By-Law and that the permission applied for may be granted without in any way endangering life or property, he shall transmit a certificate to this effect to the City Council, which may, at its discretion, grant or deny the permission applied for.

[Page 151]

It was held that the words in italics constituted an invalid provision which the municipality did not have the power to enact. It was pointed out that this was not a zoning by-law and the Court held that the permit should be granted despite the resolution adopted to deny it, without saying why it was considered possible to invalidate the contested part of the by-law while allowing the rest to stand. It seems to me sufficient to say that this was not a zoning by-law and that the case did not involve a general provision prohibiting all building that was not specially permitted. On the contrary, the case involved a by-law providing generally for all the conditions subject to which a permit would be issued and then giving a discretionary power of refusal.

In this connection, I must say in conclusion that I do not understand why in Canadian Petrofina the Court of Appeal failed to see in that decision a principle incompatible with the by-law in issue. If the city council cannot reserve for itself the discretionary power to refuse a permit, how could it grant it to a group of property owners that is not the group that is to decide upon any amendments to the by-law? In my opinion, Sun Oil like Vic Restaurant, sanctions the principle that a municipal council cannot exercise a power to pass by-laws otherwise than in the manner provided for by law.

For these reasons I would allow the appeal, reverse the decision of the Court of Appeal and vary the judgment of first instance so as to declare void para. (c) of subs. (1) of s. 6 of respondent’s by-law 215, but otherwise to dismiss the motion for mandamus. Since appellant fails to obtain the chief object of his motion, I would not award him any costs.

Appeal dismissed with costs, PIGEON J. dissenting.

Solicitors for the appellant: Viau, Bélanger, Hébert, Mailloux, Beauregard, Paquet & Pinard, Montreal.

Solicitors for the respondent: McDougall, Hemens, Harris, Thomas, Mason, Schweitzer, Montreal.