A-581-78
Comparaît: The Queen (Appellant) (Applicant)
Court of Appeal, Jackett C.J., Pratte and Ryan
JJ.—Ottawa, December 19, 1978.
Jurisdiction — Expropriation — Tenant and former owner
of property overholding lease — Notice of intention to expro
priate registered — Application to set a date for ruling to
determine whether, at time of expropriation, any real right
existed in favour of tenant, and if necessary, on nature and
extent of such right, dismissed by Trial Judge — Appeal
allowed — Expropriation Act, R.S.C. 1970 (1st Supp.), c. 16,
ss. 4, 12, 13, 16, 17, 21.
This appeal is against a decision of the Trial Division which
dismissed an application made ex parte under subsections
16(1),(2) of the Expropriation Act. The National Capital
Commission bought property located in Hull and leased it back
to the vendor for a term to expire October 31, 1978. The lease
terminated in October, 1977 as a consequence of the tenant's
refusal to rebuild a part of the leased property which had been
destroyed by fire. When the tenant continued to occupy the
property alleging that its lease should run until April 30, 1981,
the Minister of Public Works registered a notice of intention to
expropriate. The Trial Judge dismissed for want of jurisdiction
the application to set a date for a hearing for the Court to rule
on whether, at the time of the expropriation, any real right
existed in favour of the tenant, and if necessary, on the nature
or extent of such a right.
Held, (Jackett C.J. dissenting) the appeal is allowed.
Per Pratte J.: The decision that the application must be
dismissed solely on the ground that the question of whether the
lease is terminated must be decided in light of the Quebec Civil
Code is incorrect. Although the problem for the Federal Court,
that of determining whether the tenant has any rights in the
expropriated building, is one governed by provincial law, it is
true of all cases in which the Court hears an application under
section 16. In the exercise of powers conferred on it by section
16 of the Expropriation Act, the Court may apply provincial
law without contravening the principles laid down in the
McNamara and Quebec North Shore cases. Even if the Trial
Judge may have meant that, in the circumstances, it appeared
to him that the Crown had not expropriated the property in
question because it needed it but merely in order to resolve
through the Federal Court, rather than the Superior Court of
Quebec, the question of whether the lease had terminated, the
decision is incorrect. The Trial Judge should have assumed in
the circumstances that the expropriated property was "required
by the Crown for a public work or other public purpose".
Per Jackett C.J. dissenting: The Trial Judge proceeded on
the view that, a difference having arisen between the Crown
and a third party as to whether a lease of land was still in
existence, the officials of the Crown went through the form of
expropriating the third party's interest in the land for the
purpose of seeking a decision on the disputed question from the
Federal Court. The judgment appealed against is correct and
the appeal should be dismissed but the judgment appealed from
should be amended by adding "subject to the applicant's right
to re-apply on new material showing further and more complete
facts".
APPEAL.
COUNSEL:
J. C. Ruelland, Q.C. for appellant (appli-
cant).
SOLICITORS:
Deputy Attorney General of Canada for
appellant (applicant).
The following are the reasons for judgment
delivered orally in English by
JACKETT C.J (dissenting): I adopt my brother
Pratte's statement of the facts and proceedings. I
regret that I cannot agree with his conclusion.
The Expropriation Act, R.S.C. 1970 (1st
Supp.), c. 16, provides for the expropriation of an
interest in land when "in the opinion of the Minis
ter", such interest "is required by the Crown for a
public work or other public purpose" and, for that
purpose requires, as a minimum, registration of a
notice of intention to expropriate (section 4) and
of a notice of confirmation (section 12). While
registration of the latter notice vests title in the
Crown (section 13), the right to take possession
where possession is held adversely to the Crown, is
as a general rule conditional (section 17(1)(c))
upon a notice having been sent to interested parties
who, in case of doubt, are first to be determined in
the manner contemplated by section 16.
As I understand the decision of the Supreme
Court of Canada to which the learned Trial Judge
refers, there can be no doubt, in my view, that,
while the question whether a lease of federal
public land has come to an end may well have to
be determined in accordance with the law of the
province where the land is situate (assuming no
special federal law has been enacted to regulate
the matter) when a question arises as to who, if
anybody, is entitled to notice of an expropriation
(or to compensation by virtue of an expropriation)
under a federal statute, that is a question that may
be assigned to a section 101 court notwithstanding
that it incidentally involves the application of pro
vincial law. I do not understand the learned Trial
Judge to have intended to express any view to the
contrary.
What I understand to be the view upon which
the learned Trial Judge proceeded is that, a differ
ence having arisen between the federal Crown and
a third party as to whether a lease of land was still
in existence, the officials of the Crown went
through the form of expropriating the third party's
interest in the land for the purpose of seeking a
decision on the disputed question from the Federal
Court. In my view, if that is a correct appraisal of
the material that was placed before the Trial
Division, the judgment appealed against is correct
and the appeal should, subject to a reservation to
be mentioned later, be dismissed. I am of that view
notwithstanding section 21(b)(i) of the Expro
priation Act, which says inter alia that "Unless
questioned by the Crown, ... it shall be conclu
sively deemed that . .. all of the interests to which
a notice of intention relates are ... in the opinion
of the Minister required by the Crown for a public
work or other public purpose". It would seem that
there are at least two classes of case where a
document purporting to be a "notice of intention"
may fall outside of the operation of section 21,
viz.:
(a) where it is questioned by the Crown, and
(b) where it is shown that it is not a "notice of
intention" as contemplated by section 21
because it was not, in fact, filed under section 4,
and the "notice of intention" here falls within both
such classes if the application filed on behalf of the
Crown has the meaning that I have suggested has
been put on it by the learned Trial Judge. In my
view, the application dismissed by the judgment
appealed against is open to the interpretation that,
as I have suggested, was put on it by the learned
Trial Judge. The otherwise unnecessary recital in
the application of
(a) a purchase,
(b) a lease back to the purchaser for a fixed
term,
(c) a dispute between lessor and lessee as to
whether the lease is still in existence, and
(d) an expropriation of the leasehold interest if
any,
without any allegation of a fact arising requiring
the taking of possession for a public purpose is,
when one reads the whole of the application, open
to the interpretation that the expropriation was
merely to bring about a quick end to the dispute
through the use of the expropriation machinery
and not because possession of the land was
required for a public purpose. While the matter is,
in my opinion, open to doubt, I am not prepared to
say that the learned Trial Judge was wrong.
Indeed, I am inclined to the view that material
filed to invoke the jurisdiction of the Court on an
ex parte application should not be acted upon
when it is so framed that it raises a question as to
whether or not the Court has jurisdiction.
I would not, however, have merely dismissed the
application, as, in my view, the applicant should
have been allowed to re-apply on new material
showing further and more complete facts so that,
in the event that the application had been misun
derstood, a valid expropriation would not be
frustrated.
I do not wish to be understood as casting doubt
on the validity of an expropriation where land is
required for a public purpose but there is some
doubt as to whether the Crown has title or clear
title. Such a case, in my view, is a proper case for
expropriation before public money is spent on the
land.
In my view the judgment appealed from should
be amended by adding words to the following
effect: "subject to the applicant's right to re-apply
on new material showing further and more com
plete facts" but, subject to the addition of such
words, I am of the view that the appeal should be
dismissed.
* * *
The following is the English version of the
reasons for judgment delivered orally by
PRATTE J.: This appeal is against a decision of
the Trial Division * which dismissed an application
made ex parte under subsections (1) and (2) of
* [Uncirculated—Ed.]
section 16 of the Expropriation Act.'
The application, which was supported by two
affidavits, alleged facts which may be easily sum
marized. On August 29, 1975 the National Capital
Commission, an agent of Her Majesty, bought an
immovable property located in Hull, "Le Motel
Fontaine Bleue Inc." A few days later, the Com
mission leased the same immovable to the com
pany which had sold it, for a term to expire on
October 31, 1978. The lease terminated on
October 5, 1977 as a consequence of the tenant's
refusal to rebuild a part of the leased immovable
which had been destroyed by fire. Despite the
termination of its lease, "Le Motel Fontaine Bleue
Inc." continued and still continues to occupy the
immovable, alleging that its lease should run until
April 30, 1981. On November 9, 1978 the Minis
ter of Public Works, acting in accordance with the
provisions of the Expropriation Act, caused to be
registered a notice of intention to expropriate all
the real rights associated with the immovable
occupied by "Le Motel Fontaine Bleue Inc.",
except for the rights already acquired by the Na
tional Capital Commission. On November 13,
1978, a notice of confirmation of the intention to
expropriate was registered.
The last paragraph of the application stated
that:
[TRANSLATION] Although the Attorney General of Canada
denies that any real right whatever exists in favour of the
occupant, "Le Motel Fontaine Bleue Inc.", he considers it
' These provisions read as follows:
16. (1) Where the Attorney General of Canada, at any
time after the registration of a' notice of confirmation, is in
doubt as to the persons who had any right, estate or interest
in the land to which the notice relates or as to the nature or
extent thereof, he may apply to the Court to make a determi
nation respecting the state of the title to the land or any part
thereof immediately before the registration of the notice, and
to adjudge who had a right, estate or interest in the land at
that time, and the nature and extent thereof.
(2) An application under this section shall in the first
instance be made ex parte and the Court shall fix a time and
place for the hearing of the persons concerned and give
directions as to
(a) the persons who are to be served with the notice of the
hearing, the contents of the notice and the manner of
service thereof;
(b) the material and information to be submitted by the
Attorney General of Canada or any other persons; and
(c) such other matters as the Court considers necessary.
advisable for the Court to rule on whether, at the time of the
expropriation, any real right existed in favour of "Le Motel
Fontaine Bleue Inc.", and if necessary, on the nature or extent
of such a right.
The Trial Judge dismissed this application for
reasons stated as follows in his decision:
Applicant is asking ex parte that a date of hearing be set for
this Court to rule, in accordance with section 16 of the Expro
priation Act, on the rights which may have existed between her
and "Le Motel Fontaine Bleue Inc.", under a simple lease
concluded between them on September 4, 1975 respecting a
building in the city of Hull, Province of Quebec.
The hearing requested would be required to determine
whether the tenancy is now terminated or whether "Le Motel
Fontaine Bleue Inc." still enjoys a right of tenancy until April
30, 1981. This question is solely a matter of provincial law
principles, namely those of the Civil Code of Quebec, and is not
in any way affected by a federal statute. Moreover, the Expro
priation Act does not exist to enable the Crown to use the
Federal Court to resolve a question arising out of a contract
concluded between it and another party. The principles stated
by the Supreme Court of Canada in the McNamara and
Quebec North Shore cases forbid it, because the question
relates solely to the contract, and not to the expropriation.
Since I am persuaded that the Federal Court has no jurisdic
tion over the case at bar, and that the applicant has no chance
of succeeding in an application under section 16 of the Expro
priation Act, the application at bar is denied.
If I interpret this decision as saying that the
application must be dismissed solely on the ground
that the question of whether the lease of "Le
Motel Fontaine Bleue Inc." is terminated must be
decided in the light of the Quebec Civil Code, it
seems to be clearly incorrect. It is true that the
problem for the Federal Court, that of determining
whether "Le Motel Fontaine Bleue Inc." has any
rights in the expropriated building, is one governed
by provincial law; but that is true of all cases in
which the Court hears an application under section
16. I think it is clear that, in the exercise of the
powers conferred on it by section 16 of the Expro
priation Act, the Court may apply provincial law
without contravening the principles laid down in
the McNamara and Quebec North Shore cases.
However, it is quite possible that the decision a
quo should not be so interpreted. The Trial Judge
may have meant that, in the circumstances, it
appeared to him that the Crown had not expro
priated the immovable in question because it
needed it (which, under section 4, is the only
ground on which an expropriation is justified), but
merely in order to resolve through the Federal
Court (rather than through the Superior Court of
Quebec) the question of whether the lease of "Le
Motel Fontaine Bleue Inc." had terminated.
Even interpreted in this way, the decision a quo
appears to be incorrect because, in my opinion, the
Trial Judge should have assumed in the circum
stances that the expropriated property was
"required by the Crown for a public work or other
public purpose". Paragraph 10 of the application
cited the wording of the notice of intention to
expropriate, the first words of which clearly
indicated the reason for the expropriation:
[TRANSLATION] Notice is hereby given that the National
Capital Commission requires, for purposes of development and
improvement, all the real rights ....
In my view, there is nothing in the application to
cast doubt on this statement, the truth of which
cannot be questioned without ignoring the pre
sumption created by section 21, according to
which
21. Unless questioned by the Crown,
(b) it shall be conclusively deemed that
(i) all of the interests to which a notice of intention relates
are,
in the opinion of the Minister required by the Crown for a
public work or other public purpose; ...
It is possible that, despite the wording of section
21, this presumption is not irrebuttable. However,
there seems to be no doubt that it cannot be
ignored in the absence of evidence that the expro
priated property was not required by the Crown
for a public purpose.
For these reasons, I would allow the appeal,
quash the judgment of the Trial Division and refer
the case back for a ruling on appellant's applica
tion in accordance with section 16(2) of the
Expropriation Act.
* * *
RYAN J. concurred.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.