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National Capital Commission (Plaintiff) v.
Gertrude Lapointe and The Guaranty Trust Company of Canada (Defendants)
Trial Division, Noël A.C.J.—Ottawa, June 5 and 9, 1972.
Expropriation—Civil rights—Whether expropriation is by "due process of law"—Canadian Bill of Rights, s. 1(a).
The right to expropriate land without any challenge as to the expropriator's good faith is clearly authorized by section
12 of the Expropriation Act, R.S.C. 1952, c. 106, and accordingly the deprivation of the expropriated party is by "due process of law" as required by section 1(a) of the Canadian Bill of Rights. The expression "due process of law" means the existing law governing the rights of the owner and also includes the holding of a hearing where the principles of fundamental justice will be applied, which will be provided in this case by an expropriation action in this Court.
The King v. Toronto [1946] Ex.C.R. 424, referred to.
MOTION.
E. M. Thomas, Q.C. and J. P. Fortin for plaintiff.
A. Roy for defendants.
NOEL A.C.J.—In her defence plea defendant Gertrude Lapointe alleges that the expropria tion carried out by the National Capital Com mission is invalid because it was based on a statute which infringes the Canadian Bill of Rights. Indeed, at the start of the hearing of this case her counsel submitted that under section
13 of the National Capital Act, R.S.C. 1970, c. N-3, plaintiff was able, with the approval of the Governor in Council, to acquire land by expro priation under the Expropriation Act, R.S.C. 1952, c. 106, which he calls the old statute, without the owner's consent and even without giving him notice of this acquisition. In fact, it is sufficient under that Act to deposit a plan and description of the land expropriated in the Reg istry Office, and as of this depositing the expro priating party becomes the owner, and any claim to or encumbrance upon such land or property is converted, as respects the expro priating party, into a claim to the compensation money or to a proportionate part thereof. He stated that the owner cannot contest the
Crown's right to take or acquire the land or property, and he added further that the expro priated party may be left in a state of uncertain ty, since no time was set for payment of the compensation. He submitted that the parts of the old statute which are contrary to the Canadian Bill of Rights are, first, that (1) there is no provision for notice of expropriation; (2) an owner or tenant may not legally object to acquisition of his property, and is even required to consent before receiving compensation; (3) the expropriating party may arbitrarily signify in writing to the expropriated party after the property is acquired that his land or property is no longer required, and registration of a surren der document will return such property to its owner; (4) there is no established negotiation procedure to facilitate settlement of disputes over the amount of compensation; and lastly, (5) interest on the unpaid amount of compensa tion is set at only five per cent.
Counsel for the defendant contends that all these points are in violation of certain sections of the Canadian Bill of Rights, namely section 1(a), which deals with the right of the individual to ... enjoyment of property, and the right not to be deprived thereof except by due process of law, and section 2(e) which deals with depriving ... of the right to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations.
He submits further that this Act containing the Canadian Bill of Rights applies to the Expropriation Act, because section 5(2) of the Canadian Bill of Rights states clearly that the expression "law of Canada" means "an Act of the Parliament of Canada enacted before or after the coming into force of this Act", and he adds that there is nothing in the Expropriation Act which states that it shall apply notwith standing the Canadian Bill of Rights. In the submission of counsel for the defendant the latter Act protects the individual in the enjoy ment of his property, ensures that he will not be deprived of his property without due process of
law, and will always be entitled to a fair hearing of his case.
It is undoubtedly true that section 12 of the Expropriation Act does not permit the expro priated party to question the good faith of the Minister or the person who has decided on the expropriation of any property for purposes of a public work. See The King v. City of Toronto [1946] Ex.C.R. 424, where in summation it is said, at page 431, that:
Section 12 provides that the deposit of the plan and description shall be deemed and taken to have been deposit ed by the direction and authority of the Minister, and indicating that in his judgment the land therein described is necessary for the purposes of the public work, and that the said plan and description shall not be called in question except by the Minister.
And at page 432 it is stated that:
Having done what he was expressly authorized to do by Parliament, it cannot be said that he (the Minister) did not act in good faith. That being so his judgment is not open to review by the Court by reason of Section 12.
Although this power was one which could be described as arbitrary, the legislator clearly gave the Minister, or the person authorized to decide on expropriation, the right to act in this way, and this power is exercised by the due process of law spoken of in section 1(a) of the Canadian Bill of Rights. Accordingly it is not true to say that the fact the expropriated party is unable to challenge the good faith of the person who decided on the expropriation for purposes of public works contravenes the Canadian Bill of Rights.
Moreover, I feel that although, since the date on which defendant's property was expropriat ed, the National Capital Commission has still not carried out the work to construct an exten sion of the existing road along the Ottawa River, namely the Ottawa River Parkway, as stated in the Order in Council of February 12, 1963, this is clearly a public work, though the delay in carrying out such work may have given the expropriated parties the impression it would only be completed in the distant future, or poss ibly never.
The old Expropriation Act undoubtedly gives the expropriating party certain rights which may
be regarded as arbitrary, and the new Expro priation Act (18-19 Eliz. II, c. 41) sought to remedy certain aspects of that Act. It is never theless true, however, as we have seen, that the Expropriation Act authorizes plaintiff to act as it did, and does not contravene the Canadian Bill of Rights. In fact, the right which the individual possesses "to enjoyment of property and the right not to be deprived thereof" except by due process of law, means, I feel, that this right may only be withdrawn from him by the law existing or in force. The expropriation of property must, however, be carried out by a reasonable procedure, for a purpose which may be regarded as the public interest, and the owner is to recover compensation, the amount of which must be fairly arrived at after a hear ing. The expression "due process of law", or in French "application régulière de la loi", in the present case at least, means the existing law governing the rights of any owner of expropriat ed property, but should also include the holding of a hearing in which the principles of funda mental justice recognized by our legal system would be applied. The word "law" here means not only the law to be found in the statutes, but is also used in its abstract or general sense, and includes what are known as the principles of natural justice.
It appears to me, then, that the Expropriation Act under which the National Capital Commis sion acquired the defendant's land and property is a law adopted by the Parliament of Canada, that the purpose of such acquisition was for public works, and that although the procedure established might be regarded as arbitrary in certain respects, it nonetheless constitutes not only for defendant but for all who have been divested of their land and property, the due process of the law. Moreover, the proceedings to be taken in the circumstances, namely the action which is now before this Court, also constitutes for defendant a fair hearing of her claim, and must and will be conducted, in so far as this Court is concerned, according to the principles of justice necessary to define the rights and obligations of the parties. The expro priation procedure carried out by the Commis sion, which involves no discrimination, is
accordingly valid. The National Capital Act, R.S.C. 1970, c. N-3, and by reference the Expropriation Act, R.S.C. 1952, c. 106, in no way contravenes the Canadian Bill of Rights. I must accordingly dismiss defendant's motion, and the hearing will be continued for the pur pose of determining the compensation due to the defendants; costs to follow.
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