Judgments

Decision Information

Decision Content

T-8489-82
Jean Senecal (Plaintiff) v.
The Queen (Defendant)
Trial Division, Walsh J.—Montreal, October 27; Ottawa, November 4, 1983.
Transportation — Judicial review — Money found at Dorval Airport not claimed by owner — Regional Administra tor, acting under applicable Regulations, allotting part to finder, rest to charities — Definition of "charitable institu tion" under s. 3 of Regulations — Whether Regulations ultra vires as conferring too much discretion on Regional Adminis trator — Assuming not ultra vires, nothing in Regulations requiring consecutive application of paragraphs of s. 3 thereof
— Quebec Civil Code not providing for disposition of found objects in any definitive manner in absence of special laws on subject — Department of Transport Act, R.S.C. 1970, c. T-15
— Income Tax Act, S.C. 1970-71-72, c. 63, ss. 110(8)(c) (as am. by S.C. 1976-77, c. 4, s. 43(4)), 149.1(1) (as added idem, s. 60(1)) — Income War Tax Act, R.S.C. 1927, c. 97, s. 4(e) — Civil Code of Lower Canada, arts. 593, 2268 — Airport Personal Property Disposal Regulations, C.R.C., c. 1563, ss. 2, 3.
Personal property — Disposition of personal property lost or abandoned at airport — Regulations authorizing Regional Administrator to give to charitable institution — Air Canada employee finding $10,000 U.S. on floor — Handing money to police — Rejecting $1,500 reward offered by Regional Administrator — Plaintiff arguing Regulation insufficiently precise and giving Regional Administrator too much discretion — Authorities relied on by plaintiff applicable to by-laws and regulations with which public must comply — Donees of property abandoned in airports not so bound — Not feasible to specify charities to benefit — Final reward offer not so low as to justify court interference with administrative discretion — Discussion of provisions in Quebec Civil Code as to ownership of lost property — Airport Personal Property Disposal Regu lations, C.R.C., c. 1563, s. 3 — Civil Code of Lower Canada, arts. 593, 2268.
Charities — Regulations under Department of Transport Act giving Regional Administrator power to dispose of lost or abandoned personal property to charitable institution — Defi nition of "charitable institution" — Organization having as objects expansion of musical culture and development in young Canadians — Organization selling tickets to musical programmes but non-profit — Promotion of arts is charitable purpose — Wide discretion given Regional Administrator as to choice of charitable institutions not rendering Regulations
invalid — Airport Personal Property Disposal Regulations, C.R.C., c. 1563, s. 3.
Having found a packet containing $10,000 U.S. on the floor at the Dorval airport, the plaintiff handed the money to the RCMP. The officer told him that the money would be returned to him if it was not claimed within three months. Acting under the Airport Personal Property Disposal Regulations, the Regional Administrator decided to give most of the money to charity, initially offering a reward of $1,500 to the plaintiff.
The plaintiff claims the whole amount, arguing that the Regulations, section 3 in particular, are not specific enough and give too much discretion to the Regional Administrator and are therefore ultra vires. The question arose as to whether the charities in question were charitable institutions within the meaning of section 3. The plaintiff also contends that the paragraphs of section 3 should be applied consecutively. He finally argues that, in the absence of any specific regulations, the Quebec Civil Code entitles him to all of the money found.
Held, the action should be dismissed. The Regulations are sufficiently specific; the discretion conferred is not too wide and its exercise does not warrant judicial intervention. The charities are all "charitable institutions" within the meaning of section 3 of the Regulations, that term being synonymous with the terms "charitable organization" or "charitable foundation" used in the Income Tax Act. Nothing in the wording of section 3 warrants the narrow "consecutive application" interpretation put forward by the plaintiff. Finally, the Quebec Civil Code is of no help to the plaintiff as article 2268 does not apply and since article 593 merely contemplates that in most cases, special laws will apply; otherwise found objects cannot be disposed of in any definitive manner.
CASES JUDICIALLY CONSIDERED
REFERRED TO:
Peter Birtwistle Trust v. Minister of National Revenue, [1938-39] C.T.C. 356 (Ex.Ct.), affirmed by [1938-39] C.T.C. 371 (P.C.); Commissioners for Special Purposes of the Income Tax v. Pemsel, [1891] A.C. 531 (H.L.); City of Verdun v. Sun Oil Company Ltd., [1952] 1 S.C.R. 222; Minister of National Revenue et al. v. Creative Shoes Ltd., et al., [1972] F.C. 993 (C.A.); Compagnie Miron Ltée c. Sa Majesté la Reine, [1979] C.A. 36 (Que.); Nicholson v. Haldimand-Norfolk Regional Board of Commissioners of Police, [1979] 1 S.C.R. 311.
COUNSEL:
Pierre Gaston for plaintiff. Stephen Barry for defendant.
SOLICITORS:
Pierre Gaston & Associés, Lachine, Quebec, for plaintiff.
Deputy Attorney General of Canada for defendant.
The following are the reasons for judgment rendered in English by
WALSH J.: The facts in this case are not in dispute but issues are raised which do not appear to have been previously dealt with in jurispru dence. Plaintiff, a loading supervisor for Air Canada, and his wife were leaving the cafeteria in the Dorval International Airport in Montreal when he found a packet of money on the floor. He asked some nearby travellers if it was theirs; when they did not claim it he took it to the Royal Canadian Mounted Police at the airport, delivering it to the officer there where it was counted and found to consist of 100 bills of $100 each for a total of $10,000 in American funds. The officer there allegedly told him that if it was not claimed in three months it would be returned to him noting the date of finding July 28, 1981, and another date October 28, 1981, in an informal receipt which he gave him on a piece of paper. When after the three-month period had expired, he went to claim it, he was refused and brought the present pro ceedings. The information given to him by the Constable that if the owner did not claim it it would be returned to him after three months was erroneous but that is not the issue in the present proceedings.
Defendant referred to chapter 1563 of the Con solidated Regulations of Canada made pursuant to the provisions of the Department of Transport Act [R.S.C. 1970, c. T-15] designated as Regulations Respecting the Disposal of Personal Property Left at Airports. Section 3 of these Regulations reads as follows:
3. All personal property that has been lost or abandoned at an airport or that otherwise remains unclaimed at an airport shall, subject to reclamation by the owner thereof, be retained at the airport in the custody of the Airport Manager for a period of not less than 30 days and at the end of such period the Regional Administrator may dispose of that personal property, at his discretion, by one or more of the following methods:
(a) by return to the finder, if the finder is not an employee of the Department;
(b) by private sale or by sale at public auction;
(c) by disposition, by gift or otherwise, to a charitable institution in Canada; or
(d) by destruction where no other method of disposal is deemed appropriate.
André Dumas who has been the Administrator of Transport Canada for the Quebec Region since 1976 testified that he arranged for the distribution in accordance with this directive. On the date of the deposit on August 3, 1981, by the Director of Financial and Administrative Services of the Air port in the account of the Receiver General of Canada, $10,000 U.S. was worth $12,330 Canadi- an. On September 15 he decided to have cheques issued as follows:
Jean Senecal as a reward for his civic spirit $ 1,500
Centraide $ 2,000
Fonds de développement de l'hôpital Ste-Justine $ 3,000
Fondation du Québec des maladies du coeur $ 1,915
Société canadienne du Cancer $ 1,915
Leucan $ 2,000
TOTAL $12,330
Plaintiff refused to accept this offer so the cheques were retained and not distributed save for that to the order of Leucan which had already been given to it. Although paragraph 15 of the statement of defence indicates that four cheques were then issued in April 1982, two in the amount of $1,000 each for the Canadian Cancer Society and a third in the amount of $500 for it, and a cheque for $400 to the Jeunesses musicales, Mr. Dumas testified that the first two cheques for $1,000 each were never. sent. The Canadian Cancer Society received the cheque for $500, the Jeunesses musicales for $400 and a receipt was also produced from Leucan Inc. in the amount of $1,776. The witness explained that Leucan Inc. is an organization which promotes concerts for the benefit of Ste. Justine Hospital and is a registered charity. He recollects that the $2,000 was for the purchase of tickets for a dinner to raise funds for its charitable purposes, the difference between the $1,776 for which the receipt was given and the $2,000 donated representing the relatively small cost of the dinner. He believes some people from Transport Canada used the tickets. All the sums have not been paid out as yet while awaiting the outcome of this trial and on May 3, 1982, a cheque in the name of the plaintiff Jean Senecal for
$2,000 was issued, which amount he refused. This offer is renewed in the present proceedings.
While defendant had representatives from the various organizations to whom it was proposed to make the distribution available to testify as to the nature of their work, the Court did not consider this was necessary, taking note of the fact that Centraide is a centralized welfare agency in Mon- treal distributing funds raised in its annual cam paign to various charitable institutions which it supports, and that the objectives of the Quebec Heart Fund and the Canadian Cancer Society are well known as is the work of Ste. Justine Hospital, the well-known French Children's Hospital in Montreal. The work of Leucan was explained by the witness Mr. Dumas as being devoted to raising funds for Ste. Justine Hospital.
Jean-Claude Picard, Director General of Les Jeunesses musicales du Canada filed a copy of its charter which indicates that its objects inter alla are to expand musical culture and development in young Canadians, to help Canadian artists to pro ceed with their musical careers, to aid young Canadian musicians to develop their artistic cul ture, to upgrade and expand works of Canadian composers and solicit and receive contributions and funds from public or private sources for these purposes. It has been in existence since 1951 and its work is well known in Montreal as elsewhere. While it does sell tickets for its musical pro grammes it is a non-profit organization and recog nized as such under the provisions of the Income Tax Act [S.C. 1970-71-72, c. 63].
Paragraph 110(8)(c) of the Income Tax Act [as am. by S.C. 1976-77, c. 4, s. 43(4)] defines "regis- tered charity" as follows:
11o. (8)(c) ...
(i) a charitable organization or charitable foundation, within the meanings assigned by subsection 149.1(1), that is resident in Canada and was either created or established in Canada, or
(ii) a branch, section, parish, congregation or other divi sion of an organization described in subparagraph (i) that receives donations on its own behalf,
that has applied to the Minister in prescribed form for registration, that has been registered and whose registration has not been revoked under subsection 168(2).
Paragraph 3(c) of Regulations 1563 (supra) uses the words "charitable institution" rather than the words "charitable organization" or "charitable foundation". In subsection 149.1(1) of the Act [as added by S.C. 1976-77, c. 4, s. 60(1)] we find the following definitions:
149.1(1)...
(a) "charitable foundation" means a corporation or trust constituted and operated exclusively for charitable purposes, no part of the income of which is payable to, or is otherwise available for, the personal benefit of any proprietor, member, shareholder, trustee or settlor thereof and that is not a charitable organization;
(b) "charitable organization" means an organization, wheth er or not incorporated, all the resources of which are devoted to charitable activities carried on by the organization itself and no part of the income of which is payable to, or is otherwise available for, the personal benefit of any proprie tor, member, shareholder, trustee or settlor thereof;
(c) "charitable purposes" includes the disbursement of funds to qualified donees;
(d) "charity" means a charitable organization or charitable foundation;
Black's Law Dictionary defines "charitable institution" as "One supported in whole or in part at public expense or by charity. One for the relief of a certain class of persons, either by alms, educa tion, or care. One administering a public or private charity; an eleemosynary institution. One perform ing service of public good or welfare without prof it." It defines "charitable organization" as "One which has no capital stock and no provision for making dividends and profits, but derives its funds mainly from public and private charity, and holds them in trust for the objects and purposes expressed in its charter. One conducted not for profit, but for promotion of welfare of others."
The case of Peter Birtwistle Trust v. Minister of National Revenue' dealt with paragraph 4(e) of the old Dominion Income War Tax Act, R.S.C. 1927, c. 97 which used the words "religious, chari table, agricultural and educational institution, board of trade and chamber of commerce". At page 360 of the trial judgment, Maclean J. states:
A charitable institution is, I think, an organization created for the promotion of some public object, of a charitable nature, and functioning as such, and I do not think it can be said that either the Canadian Trustee or the Colne Trustee, or the Town of Colne, or the trust fund itself, fall within that definition. A charitable institution is, I think, clearly distinguishable from a charity, or a charitable trust.
In the appeal to the Privy Council reported in the same volume at page 371, the Judicial Committee endorsed and amplified upon this distinction. In an editorial note to the report, reference is made to the frequently cited case of Commissioners for Special Purposes of the Income Tax v. Pemsel, [1891] A.C. 531 [H.L.] in which Lord Macnaght- en stated that "charity" in its legal sense com prises four principal divisions: "trusts for relief of poverty, trusts for the advancement of education, trusts for the advancement of religion, and trusts for other purposes beneficial to the community not falling under any of the preceding heads". The editorial note states: "The effect of the present judgment is to narrow the above meaning for purposes of interpreting the word "charitable" as related to the word "institutions" in 4(e)."
In the Canadian Encyclopedic Digest (Ontario) at Title 24-20 under No. 29 is found the state ment: "The promotion of the arts is a purpose which benefits the public at large and is chari table, and so is a gift to promote the training of singers." In the Canadian Encyclopedic Digest (Western) at 24-11 under No. 10 we find the statement: "A charitable institution is an organiza tion created for the promotion of some public project of a charitable nature and functioning as such."
Undoubtedly many types of non-profit organiza tions performing services for the public good, but
I [1938-39] C.T.C. 356 [Ex.Ct.].
not strictly speaking charities can readily obtain registration under the provisions of the Income Tax Act so that donations to them are tax exempt. These organizations may be of a sporting or cul tural nature. As examples of the latter, orchestras, ballet companies, drama groups, and musical organizations such as Les Jeunesses musicales would be included. They are not charitable institu tions within the narrower sense of the words. On the other hand it would be difficult to conclude that the Ste. Justine Hospital, Heart Fund, or Canadian Cancer Society are not charitable insti tutions, and there is nothing to indicate that the words "charitable institution" as used in chapter 1563 was intended to be given a narrow and restrictive meaning or was to be interpreted other wise than the words "charitable organization" or "charitable foundation" used in the provisions of the Income Tax Act. Moreover even if it were found that the $400 given to Les Jeunesses musi cales was improperly given to it, or that to the extent of the difference between $2,000 and $1,776 the amount given to Leucan Inc. was improperly given to it since some benefit resulted to the donor in the form of dinner tickets used by some members of the Department of Transport, this would not of itself mean that plaintiff himself is entitled to claim these amounts. I should add that Mr. Dumas appeared to be a fair and reason able witness and the manner in which he exercised his discretion does not appear to have been unfair or contrary to natural justice.
The principal thrust of plaintiff's argument is that chapter 1563 and in particular section 3 thereof dealing with disposal of personal property left at airports is not sufficiently precise and leaves too much discretion to the Regional Administrator and hence is ultra vires. A number of authoritative French texts were referred to in support of this proposition. The textbook Pépin and Ouellette, Principes de contentieux administratif, points out at page 127, that the regulation must be complete in itself and sufficiently explicit to make it clear to the person to whom it is applied that he is comply ing with it. If his rights arid powers depend in whole or in part on the goodwill and judgment of the authority to whom the regulation gives discre-
tion the party to whom it applies cannot be sure until this intervention has taken place. At page 128 reference is made to the judgment of Justice Fauteux in the Supreme Court case of City of Verdun v. Sun Oil Company Ltd.' in which he stated:
The mere reading of section 76 is sufficient to conclude that in enacting it, the City did nothing in effect but to leave ultimate ly to the exclusive discretion of the members of the Council of the City, for the time being in office, what it was authorized by the provincial Legislature, under section 426, to actually regu late by by-law. Thus, section 76 effectively transforms an authority to regulate by legislation into a mere administrative and discretionary power to cancel by resolution a right which, untrammelled in the absence of any by-law, could only, in a proper one, be regulated. This is not what section 426 authorizes.
That case held that the power to make zoning regulations which affect property rights cannot be transformed into an administrative power discre tionary in individual nature. Reference was also made to the textbook Patrice Garant: Droit ad- ministratif At page 285, we find the statement:
[TRANSLATION] A regulation is a normative act "so far as it fulfills the role of creating legal norms of comportment and not merely to take individual decisions".
Reference was also made in this textbook at page 286 to a Federal Court of Appeal case in Minister of National Revenue et al. v. Creative Shoes Ltd., et al. 3 The Court stated at pages 1000-1001:
Moreover, the word used is not "determines" or "decides" but "prescribes" and it appears to me that the use of that word, which in the context of such a section connotes the making of a rule to be followed, indicates that the power is not merely to decide individual cases as they arise but is capable of being exercised to lay down rules of general application to be applied by the Deputy Minister and subordinate departmental officers ....
Reference was also made to the textbook Pigeon—Rédaction et interprétation des lois, Second Edition at page 33 where the learned former Judge of the Supreme Court states:
[TRANSLATION] Moreover it must not be forgotten that he who has a power of regulation cannot transform this into an administrative discretion.
and finally reference was made to the Quebec Court of Appeal case of Compagnie Miron Ltée c.
2 [1952] 1 S.C.R. 222.
3 [1972] F.C. 993.
Sa Majesté la Reine 4 in which at page 38 we find the statement:
[TRANSLATION] As a general rule regulating dispositions must set forth requirements of a certain and definite nature so that those who must obey them know their rights.
Again at page 39 we find the statement:
[TRANSLATION] It is necessary in matters of public law that the legislative authority—especially if it is delegated—clearly legislates in such a manner that the Courts apply to informed or at least instructed citizens the norms established by a power which is not a judicial power.
While it is not difficult to agree with all of these statements they appear to be more specifically applicable to by-laws or regulations with which members of the public must comply and therefore should be clearly well aware of the provisions of them while in the present the potential donees of property abandoned in airports are not required to comply with any regulation, and it is only the Regional Administrator who is called upon to interpret and comply with it. It appears to me to be specific, and it is difficult to see how it could be more detailed. Certainly it would not be feasible to name specific charitable institutions to whom the property might be given, as the regulation applies throughout Canada, and no doubt a Regional Administrator would distribute it to charitable institutions within the region in which it is found. While it is true that it does leave considerable discretion to him in the choice of the charitable institutions to whom he will distribute it and as to the amount of money to be returned to the finder, provided he is not an employee of the Department which is the present case, some discretion must always be exercised by someone in the distribution of charitable funds. Even an organization such as Centraide must through its administrators decide how the charitable funds received by it are to be distributed to the member organizations. The dele gation of discretionary authority to the Regional Administrator in section 3 does not in my view make the regulation invalid. If he had acted unfairly then the Court would clearly intervene applying the principles established in the Nicholson 5 case. For example it might perhaps be considered that he would have acted unfairly had he given no reward at all to plaintiff. When it
4 [1979] C.A. 36.
5 [1979] 1 S.C.R. 311.
comes to a question of deciding however whether the reward should be 10%, 20%, 25%, or 50% of the amount found certainly no guidance is given to him in the Regulations nor for that matter in any jurisprudence, but the offer of $2,000 out of the $12,330 available for distribution does not appear to be so shockingly low as to justify the Court in interfering with the valid exercise of his adminis trative discretion.
While this finding would be sufficient to dispose of the matter, other arguments based on behalf of plaintiff should perhaps be dealt with briefly. It was contended that if the Regulations were set aside for a lack of specificity plaintiff would then be entitled to all of the money found. In this event, in the absence of any specific valid regulation, it would be dealt with according to the law of the Province of Quebec in the same manner as if it had been found on the street or any other public place in that Province. Article 593 of the Quebec Civil Code would then apply. It reads as follows:
Art. 593. Things found on the ground, on the public high ways or elsewhere, even on the property of others, or which are otherwise without a known owner, are, in many cases, subject to special laws, as to the public notices to be given, the owner's right to claim them, the indemnification of the finder, their sale, and the appropriation of their price.
In the absence of such provisions, the owner who has not voluntarily abandoned them, may claim them in the ordinary manner, subject to the payment, when due, of an indemnity to the person who found and preserved them; if they be not claimed, they belong to such person by right of occupancy.
Unnavigable rivers are, for the purposes of this article, considered as places on land.
The article speaks for itself but the commentators make it clear that the ownership remains with the owner of the property who can claim it at any time provided his right to do so has not been prescribed, always subject to the payment of an indemnity to the person who found and preserved it. No rules are set forth as to how such an indemnity shall be calculated. The commentators comment that the property does not belong to the state, nor to the owner of the place on which it is found, but continues to belong to the owner. If he has not claimed it the finder merely has a right of occu pancy of property but not of ownership. Moreover article 2268 of the Quebec Civil Code creating
three-year prescription cannot be invoked since it only applies to a holder in good faith which a finder cannot be as he necessarily knows that the object found belongs to someone else.
Article 593 merely contemplates that in most cases there will be special laws as to how to deal with the property; otherwise it cannot be disposed [of] in any definitive manner.
Plaintiff raises one final argument which I also find to be of little merit. It is contended that the various paragraphs (a), (b), (c) and (d) of section 3 of the Regulations should be applied consecu- tively,—that is to say, in the first instance the property found should be returned to the finder and it would only be if he is unknown, not having left his name, or does not want it, that the Region al Administrator can then invoke the other para graphs. The section of the Regulations as a whole is probably more commonly used in connection with property such as suitcases, briefcases, or par cels. Section 2 of the Regulations in defining "personal property" does so in a sufficiently broad manner as to include money and this is not disput ed. It is evident that paragraphs (b) and (d) would not be applicable and the Regional Administrator therefore proposed to dispose of the money by application of paragraphs (a) and (c).
It is important to note that in the English ver sion of section 3 we find the words "by one or more of the following methods" although the French version does not include a translation of the words "one or more". Plaintiff argues that all this means is that in the event of a suitcase for example, which might contain old clothing, it should first be offered to the finder, but if he is only willing to accept the suitcase itself and not the contents the latter could then be disposed of pursuant to paragraphs (b) or (d) by private sale or by sale by auction or by destruction. He similar ly argues that paragraphs (b), (c) and (d) can only be used if the finder refuses to accept the property altogether.
I find there is nothing in the wording of the section to justify such a narrow interpretation, and in fact if it had been intended that paragraphs (a), (b), (c) and (d) were to be applied consecutively,
with the latter paragraphs being only alternatives in the event the prior paragraphs cannot be applied the Regulations would have said so more clearly, whereas on the contrary the use of the words in the English version "by one or more" authorizes the division made between the finder and the chari table institutions.
For all the above reasons plaintiff's action is dismissed subject to the payment to him of the $2,000 Canadian offered in the defence.
Since defendant admits the issue raised in these proceedings has not been dealt with before by the courts, and that a judicial determination will be welcomed as guidance in future cases, dismissal of the action will be without costs.
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