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T-2347-74
The Queen (Applicant)
v.
John Wesley Bolton (Respondent)
and
T-3749-74
The Queen (Applicant) v.
Horst Kohne and Barbara Mable Kohne (Respondents)
and
T-2351-74
The Queen (Applicant)
v.
Edgar J. Doucet (Respondent)
and
T-2356-74
The Queen (Applicant)
v.
Thomas A. Grayson (Respondent)
and
T-2346-74
The Queen (Applicant) v.
Alfred Edinger and Dorothy Edinger (Respond- ents)
and
T-3683-74
The Queen (Applicant) v.
Gerald Timothy Miller and Marguerite Ritchie Miller (Respondents)
Trial Division, Decary J.—Vancouver, November 26, 1974; Ottawa, January 14, 1975.
Expropriation—Lands vested in Crown—Former owners re maining under agreement—Notices by Crown demanding possession—Notices invalid—Warrants of possession refused—Expropriation Act, R.S.C. 1970 c. 16 (1st Supp.) ss. 3, 12, 14, 15, 17, 24, 33, 35—Canadian Bill of Rights, R.S.C. 1970, App. III, s. 1.
Lands expropriated for the purpose of expanding Vancouver airport became vested in the applicant on March 2, 1973. Each of the respondents remained in occupation under an agreement for the period ending July 31, 1974. Notices demanding physi cal possession, dated July 1973, and April 1974, were served on the respondent occupants by the Crown, which subsequently moved for issuance of a warrant of possession.
Held, dismissing the motions, both of the notices failed to comply with the Expropriation Act. The notice of July 1973, that physical possession would be "taken" by the Crown was invalid in failing to recite that the Crown "required" possession as set out in section 17(1)(c)(i) of the Act. The notice was also contradictory in demanding physical possession on November 1, 1973 and making an offer to the respondents to remain in occupation until July 31, 1974. The notice of April 1974 was not justified in declaring the Crown entitled to physical posses sion in November 1973, since the notice of July 1973 was invalid. The recital in the notice of April 1974 that the Crown "required" the lands was in literal compliance with section 17(1)(c)(i). But the lands were not in fact "required" on the relevant date, since the applicant was unable to obtain from local authorities the consents necessary to begin the contem plated operations on the lands. Both notices rendered meaning less, or interfered with, the rights of the occupants regarding the right to the assistance of the Minister in their relocation in accordance with the provisions of section 24(5), (6) of the Act. Counsel for respondents had stressed that due process of law had not been followed, in that the Minister had failed to give relocation assistance and had stopped negotiations as soon as actions were instituted for additional compensation. Semble, there may have been application of the Expropriation Act so as to abrogate the respondents' rights to equality before the law and to the enjoyment of property, contrary to section 1(a) and (b) of the Canadian Bill of Rights.
MOTION. COUNSEL:
R. Lutter for applicant.
W. Johnstone for respondents.
SOLICITORS:
Deputy Attorney General of Canada for applicant.
Johnstone & Company, Richmond, B.C., for respondents.
The following are the reasons for judgment rendered in English by
DECARY J.: These six motions for the issuance of a warrant pursuant to section 35 of the Expro priation Act', to put the Minister of Public Works in physical possession of the interests expropriated were heard together and it was agreed that the evidence was to be common.
The expropriated interests were absolutely vested in Her Majesty the Queen, the applicant, pursuant to the provisions of the Expropriation Act on the 2nd day of March 1973 being the date the notice of confirmation of the intention to expropriate was registered in accordance with the provisions of section 12(2) of the Expropriation Act. The respondents not having challenged the validity of the expropriation, it follows that the public purpose for which the expropriation was required is as indicated in the notice of intention to expropriate: that is the expansion of the Vancouver International Airport.
An offer of compensation based upon a written appraisal--was made to each of the respondents with the necessarystatements provided for in sec tion 14(4) of the Act. The offer, in each instance, was accepted. According to the provisions of sec tion 15 of the Act the full amount of the compen sation should have been paid forthwith upon the acceptance of the offer but the evidence discloses that such was not the case and that some months intervened between the acceptance and the payment.
Each respondent was party to an occupation agreement extending the delay to occupy their premises up to the end of July 1974 upon the condition, inter alia, of paying the taxes and the insurance premiums on the premises.
On July 26, 1973, a notice, purported to be given pursuant to the provisions of section 17(1)(c) of the Act, was sent to the respondents. The letter reads as follows:
On the 2nd day of March, 1973, the Crown expropriated the fee simple in the above-described lands, in which you held an equity interest.
' R.S.C. 1970 (1st Supp.), c. 16.
PLEASE TAKE NOTICE that physical possession of the above- described lands, as provided for in Section 17(1)(c) of the Expropriation Act, will be taken by the Crown on and after the 1st day of November, 1973. Please take further notice that you will be able to remain in occupancy after the 1st day of November and until the 31st day of July, 1974, by the execu tion of an Occupation Agreement between Her Majesty the Queen in Right of Canada and yourself.
Section 17(1)(c)(i) reads as follows:
17. (1) Notwithstanding section 13, the Crown becomes entitled to take physical possession or make use of any land to which a notice of confirmation relates, to the extent of the interest expropriated, only at such of the following times as is applicable, namely:
(a) at the time of the registration of the notice of confirma tion, if at that time no other person who was the owner of an interest therein immediately before the registration of the notice of confirmation is in occupation of the land;
(b) at such time, if any, after the registration of the notice of confirmation as physical possession or use of the land to the extent of the interest expropriated is given up to the Crown without any notice under paragraph (e) having been sent to the persons described in that paragraph; or
(c) in any other case, at such time after the registration of the notice of confirmation as
(i) the Minister has sent a notice to each of the persons appearing to have had any right, estate or interest therein at the time of the registration of the notice of confirma tion, so far as the Attorney General of Canada has been able to ascertain them, or, where an application has been made under section 16 and has been finally disposed of, to each of the persons adjudged to have had an interest therein immediately before the registration of the notice of confirmation, that such physical possession or use is required by the Crown on and after the expiration of such period as is specified in the notice, being not less than ninety days after the sending of the notice to each of those persons, and either that period has expired or such physical possession or use has been given up to the Crown before the expiration of that period, and ....
In view of the provisions of section 17(1)(c)(i) of the Act I do not believe that it is sufficient to state that physical possession shall be taken in order that the applicant be entitled to take physi cal possession. Indeed the provisions state that a notice shall be sent stating that the physical possession is required. The provisions of section 3 of the Act grant the power to expropriate when interest in land is required by the Crown for public work or other public purpose. The criterion for enabling the applicant to expropriate is not for any kind of purpose but only one for public work or other public purpose. After the registration of the
notice of confirmation of the intention, the appli cant owns the interest expropriated but is not, then and there, entitled to the physical possession of the interest. The provisions of section 17(1) read in part as follows:
17. (1) Notwithstanding section 13, the Crown becomes entitled to take physical possession ... only at such of the following times as is applicable, namely:
The entitlement to take physical possession is determinable: it arises only at the times set forth in the said provisions. There being occupation of the premises and no giving up of the interest, the times set forth at paragraphs (a) and (b) of section 17(1) do not apply. In the present instance, the applicant becomes entitled to take physical posses sion at no other time than the one specified at subparagraph (1)(c)(i) of section 17 which reads, in part, as follows:
17. (1) ... (c) . . .
(i) The Minister has sent a notice ... that such physical possession or use is required by the Crown on and after the expiration of such period as is specified in the notice, being not less than ninety days after the sending of the notice to each of those persons, and ....
The applicant, under the provisions of section 17(1)(c)(i) becomes entitled to take physical possession at the expiration of 90 days or more as set forth in the notice if such physical possession is required "on or after the expiration of such period as is specified in the notice". The physical posses sion has to be required by the applicant not less than 90 days after sending the notice. If it is specified that the taking of possession can be done on or after the expiration of the period specified in the notice, it must mean that it cannot be done before.
I consider that the notice has to be specific in order to comply with the provisions of section 17(1)(c)(i) of the Act and, therefore, to be valid.
The notice of July 26, 1973 states, inter alia, that:
(a) ... physical possession of the above-described lands, as provided for in Section 17(1)(c) of the Expropriation Act, will be taken by the Crown on and after the 1st day of November, 1973.
(b) ... you will be able to remain in occupancy after the 1st day of November and until the 31st day of July, 1974, by the execution of an Occupation Agreement between Her Majesty the Queen in Right of Canada and yourself.
That notice in my opinion does not comply with the requirements of section 17(1)(c)(i): it does not indicate that the physical possession is required, it states only that physical possession shall be taken on or after the 1st November 1973 and that the addressee can remain in occupancy until the 31st day of July 1974.
The provisions of that letter are contradictory: physical possession to be taken on or after Novem- ber 1st, 1973 and an offer to remain in occupancy until July 31st, 1974. In other words, there is no physical possession, be it required or not, before August 1, 1974.
The notice, to be valid, must state that the physical possession is required, not that it shall be taken before being required, because the taking before being required nullifies the right of the expropriated party, under section 17(1)(c), not to vacate before the date of expiration of the delay specified in the notice that physical possession is required. By the use of the word required, care has been taken that the physical possession be not a potestative condition wholly dependent upon the will of the applicant.
Furthermore, such a construction would affect not only the right not to vacate before the expira tion of a specified period of time when the interest is then or after required, but it would render the provisions of section 24(6) of the Act meaningless as that section determines, for establishing the value therein referred to, the earlier of two points in time for such valuation: the time of payment of compensation for that interest or the time when applicant becomes entitled to take physical possession.
The provisions of section 24(6) read as follows:
24. (6) Where an expropriated interest was, immediately before the registration of a notice of confirmation, being used by the owner thereof for the purposes of his residence and the value of the interest otherwise determined under this section is
less than the minimum amount sufficient to enable the owner, at the earlier of
(a) the time of payment to him of any compensation in respect of the interest, otherwise than pursuant to any offer made to him under section 14, or
(b) the time when the Crown became entitled to take physi cal possession or make use of the land to the extent of the interest expropriated,
to relocate his residence in or on premises reasonably equivalent to the premises expropriated, there shall be added to the value of the interest otherwise determined under this section the amount by which that minimum amount exceeds such value.
It is by meeting the conditions of section 17(1)(c) that the applicant becomes entitled to take physical possession, and then, once entitled, may take physical possession, after the expiry of the delay, by resorting to a warrant for possession as provided for in section 35 of the Act if the previous owner has not vacated the expropriated interest.
There is no specification in that notice that the interest in land is required on a definite date, far from it: it provides for an offer to remain in occupancy. That offer implies that there is no physical possession before the expiration of the period of occupancy.
It is my considered opinion that the said notice did not grant the applicant entitlement to take possession on November 1, 1973 and still less to exercise that right which arises only at the expira tion of the period specified in a valid notice sent in accordance with the requirements of section 17(1)(c)(i) of the Act.
On April 3, 1974 a document entitled: NOTICE TO QUIT AND DEMAND FOR POSSESSION was sent to the respondents:
Whereas title to the above lands and premises is vested in Her Majesty the Queen in right of Canada and Her Majesty became entitled to physical possession of the lands and prem ises on the first day of November, 1973, and whereas you have occupied the lands and premises as licencee from Her Majesty from the date last mentioned on the terms and conditions set forth in said occupation agreement:
Now, therefore take notice that:
1. Her Majesty requires physical possession of the lands and premises on the first day of August, 1974;
2. Pursuant to the terms of said occupation agreement, said licence to occupy expires on the first day of August, 1974; and is hereby terminated effective as at the date last mentioned;
3. You are hereby required to quit the lands and premises and to yield up physical possession thereof to Her Majesty on the first day of August, 1974.
In my opinion the statement in the first para graph to the effect that the applicant "became entitled to physical possession of the lands and interests on the 1st of November 1973" is not justified. It is only if the notice of July 26, 1973 had been valid pursuant to the provisions of section 17(1)(c)(i) that the applicant would have become entitled to physical possession on the 1st of November 1973. Furthermore, in view of the occu pancy agreement the applicant was not entitled to the physical possession unless a new notice was sent that was valid under the provisions of section 17(1)(c)(i) of the Act.
That notice of April 3, 1974 states, in fact, that:
(a) applicant requires physical possession on the 1st of August, 1974,
(b) the occupation agreement is terminated as of August 1st, 1974,
(c) respondent shall yield up physical possession on August 1st, 1974.
If that second notice were valid, applicant became entitled to take physical possession on August 1st, 1974 and thereafter, the respondents not having vacated the premises, to pray for the issuance of a warrant for possession under the provisions of section 35 of the Act.
One has to look at the meaning of the word "requires" in the notice and "required" in the Act at sections 17(1)(c)(i) and others.
That word "required" in the Act is found first in the fundamental sections: section 3, giving the Crown the right to expropriate and in section 4, providing for the registration of the notice of intention. In each instance the French version reads «a besoin» for "required". In section 8(11) the words "required" and «requis» are used for urgent possession; so it is in section 17(1)(c)(i) and 17(2); in section 35(1) for a warrant for possession "required" and «nécessaire» are used.
In A New Dictionary on Historical Principles (1912) Oxford, Vol. VIII, "require" is defined:
... it requires, there is need for, it is necessary to have. Intr.: To be requisite or necessary.
In Robert, Dictionnaire Alphabétique et Analo- gique de la Langue Française, Vol. 1, we find:
Avoir besoin de quelqu'un ou de quelque chose: en ressentir la nécessité....
Ibid. Vol. VI:
requis, ise, p.p., adj.: Demandé, exigé comme nécessaire.
It is my opinion that in the sections of the Act mentioned earlier the words "required", "avoir besoin" and "requis" imply the idea of a need, of a necessity, d'un besoin, d'une nécessité. That is the only meaning I shall ascribe to section 17(1)(c)(i) of the Act in view of the sections reviewed and the ordinary meaning of these words in dictionaries.
"Required" meaning needed, necessary, it fol lows that a notice purported to have been sent pursuant to the provisions of section 17(1)(c) may or may not be valid depending upon whether or not there is need or necessity for applicant to become entitled to take physical possession at the expira tion of the delay specified in the notice.
There are two facts in the present instance that deserve being mentioned at the outset of the study of that notice: when the notice of the 3rd of April was sent, the applicant could not have access to the sand that is Hers because the Municipality of Richmond had not lifted the load limit to haul sand and, furthermore, if such access had been possible the applicant had to wait for the permis sion to dredge the river from Environment Canada.
As it is defined at section 33 of the Act "date of possession" means "the day upon which the Crown became entitled to take physical possession or make use of the land to which a notice of confir mation relates", so that the applicant was not on August 1, 1974, entitled to possession because it could not exercise its rights because the need, if need there was, could not be met legitimately. The applicant could not haul the sand without the permission of the Municipality of Richmond and could not dredge without the consent of Environ ment Canada. It is repugnant to think that appli cant would fill a need originating from a right that could not be exercised legitimately. I believe that it is more reasonable to construe section 17(1)(c)(i)
in such a way that the need therein, the physical possession of land, can be fulfilled only when it is legitimate to use the land taken for the purpose for which it was expropriated.
Another troublesome question was raised during the long hearing: the whole question of expansion of the airport and of the second parallel runway is dependent upon the decision that shall be taken upon a report under study as to the ecological effect of the expansion of the Vancouver Interna tional Airport. That committee has cost, up to now, $1,000,000.
On the other hand, the taking of sand outside Sea Island shall cost for the current year about $120,000 more than it would have cost if taken from the sand stock pile belonging to the applicant.
It has been adduced in evidence that the sand in the MacDonald site on Sea Island was needed whether or not the whole project is proceeded with but still there remains the fact that the need for the sand could not be filled without permission from the Municipality and dredging could not be done without permission from Environment Canada.
I do not believe that, for purposes of the Act, a thing that cannot be used legitimately can be required up to the time it can be used legitimately.
The definition of section 33 and the time set for that in section 17(1)(c)(i) is very important: the date of expiration of the delay, because it is one of the two dates governing the time when the value of the compensation provided for in section 24(6) of the Act, under the home for home concept, shall be established.
To interpret the provisions of section 17(1)(c)(i) as counsel for applicant would like them to be, means that the date of entitlement to physical possession is wholly dependent upon the will of applicant that may send a notice when it pleases without showing need, and thereby nullifying for all practical means the purport of section 24(6) of the Act, which is to give a fair additional compen sation under the home for home concept.
With reference to the Canadian Bill of Rights the learned counsel for respondents stressed that due process of law had not been followed in the present instance because the Minister had not given proper assistance to seek and obtain alterna tive premises and had stopped negotiations as soon as actions were instituted for additional compensation.
In my opinion assistance has to be given if section 24(5) is to be meaningful, otherwise it is wholly optional to the Minister to give or not give assistance. Subsection (5) of section 24 reads as follows:
(5) For the purposes of subparagraphs (3)(b)(ii) and (4)(b)(ii), consideration shall be given to the time and circum stances in which a former owner was allowed to continue in occupation of the land after the Crown became entitled to take physical possession or make use thereof, and to any assistance given by the Minister to enable such former owner to seek and obtain alternative premises.
As per the evidence the assistance was not worthwhile.
Instituting an action does not preclude negotia tions. The severing of negotiations is strange because it is clearly stated in section 14(4) that acceptance of the offer is not prejudicial to the right to claim additional compensation. The respondents had the right to claim additional com pensation. The respondents had the right to claim additional compensation and nothing should have been done by the applicant that may lead one to reasonably believe that by stopping negotiations the respondents were to be pressed to settle or to vacate. I have had the opportunity to weigh the testimony of each respondent and natural justice precludes me from thinking that there is any bad faith in their suing for additional compensation or in their stand in not vacating. The fact is that the respondents were injured in their rights and they exercised their rights to the best of their abilities: no one can condemn such action.
It is difficult to assess the value of the assistance given, but it is easy to realize that the fact that negotiations came to an end upon the very day
claims for additional compensation were made might be unjustified retaliation. If it is so, then that is applying the Expropriation Act so as to abrogate, abridge or infringe upon the rights of the respondents not only to equality before the law but also to enjoyment of property.
At the hearing counsel for respondents wanted to adduce evidence to show that the procedure followed at Vancouver was not the same as the one followed at Mirabel and Pickering, but in view of the strong objection of counsel for the applicant no such evidence was entered. I believe that the appli cant's counsel should have allowed some of these facts to be admitted as evidence in order to leave no doubt as to any possibility of difference of treatment of the respondents and the parties expropriated at Mirabel and Pickering. The Expropriation Act should have the same applica tion throughout our land whatever the number of persons affected by an expropriation.
Applicant has not shown need to take physical possession on November 1, 1974 because if it had shown such need, the need for hauling sand could not have been filled without the permission of the Municipality of Richmond and the need for dredg ing could not have been filled without the permis sion of Environment Canada and, furthermore, if need is to be recognized before it can be filled legitimately, then the purport of the provisions of section 24(6) of the Act can be nullified at the will of applicant and to obtain such a result is not consistent with the object or purpose of the Act.
The motions are dismissed with costs to be paid by applicant and each respondent is entitled to his costs being one sixth of the total costs.
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