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Supreme Court of Canada

Municipal corporation—Altering streets—Partial closing of highway—Exchange for adjacent land—Validity of by-law—Assent of ratepayers—R.S.B.C., 1911, c. 170, s. 53, s.—ss. 176, 193.

Under the provisions of sub-sections 176 and 193 of section 53 of the British Columbia "Municipal Act," R.S.B.C., 1911, ch. 170, empowering municipal corporations to alter, divert or stop up public thoroughfares and to exchange them for adjacent land, a municipal corporation has power by by-law to close up a portion of a highway and dispose of the strip so taken from its width in exchange for adjacent or contiguous lands to be used in lieu thereof, although the effect may be to cause the narrowing of the highway. Davies J. dissented.

Per Idington and Brodeur JJ.—Such a by-law is valid although passed without the assent of the ratepayers previously obtained. British Columbia Railway Co. v. Stewart ( (1913) A.C. 816) and United Buildings Corporation v. City of Vancouver ( (1915) A.C. 345) applied.

The decision of the Court of Appeal for British Columbia on a previous appeal in the same proceedings (21 B.C. Rep. 401) was approved.

APPEAL, per saltum, from the judgment of Murphy J., in the Supreme Court of British Columbia, maintaining the plaintiffs' action to enforce an award of arbitrators appointed under the compulsory provisions of the British Columbia "Municipal Act."

[Page 460]

In 1913, the council of the municipality entered into an agreement with the Pacific Great Eastern Railway Co., determining the location of the company's railway through the municipality, by which the company was permitted to construct its line of railway upon a longitudinal strip of a public highway in front of lands belonging to the plaintiffs, and a by-law was passed by the council to give effect to the agreement. The assent of the ratepayers to the passing of the bylaw had not been previously obtained. The agreement and by-law had the effect of narrowing the highway where it passed by the plaintiffs' lands, as the strip of land on that side of the highway given by the railway company in exchange for the portion stopped up and transferred to the company for the purposes of its railway was not sufficient to restore the highway to its former width. The plaintiffs claimed compensation, and obtained an order from Mr. Justice Clement consolidating the several applications and appointing arbitrators to determine the amount of the compensation to be allowed under the provisions of the "Municipal Act" in that respect. On an appeal from the order of Clement J., the Court of Appeal for British Columbia affirmed the order[1] and held that the municipal corporation had power to close the strip of highway in question from traffic, and that the plaintiffs, as owners of lands abutting thereon, were entitled to compensation for the injury they thereby sustained, to be determined by arbitration as ordered. The arbitrators then proceeded with the arbitration, awarded damages to the plaintiffs, and the action was brought by them for the purpose of enforcing the award and obtaining pay-

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ment from the municipality of the amount of compensation allowed them.

At the trial, the plaintiff's action was maintained by Mr. Justice Murphy, and the municipal corporation, in view of the circumstances stated, were granted special leave to appeal, per saltum, to the Supreme Court of Canada.

Lafleur K.C. and R. M. Macdonald for the appellant.

James A. Harvey K.C. for the respondents.

THE CHIEF JUSTICE:—The principal question on this appeal involves the validity of a by-law passed in the following circumstances by the municipality appellant.

The Pacific Great Eastern Railway Co., a provincial company, authorized by the legislature to be carried along any existing highway, subject to leave having first been obtained from the Minister of Railways and to the consent of the municipality within the limits of which the highway is situate—the consent of the municipality being evidenced by a by-law— located its line along the north shore of English Bay. The appellant, being of opinion that, in the best interests of the municipality, it was desirable to change that location, proposed that

instead of being carried along the foreshore, the railway should be carried along a more northerly location as shewn on a plan submitted to the corporation.

The railway company accepted the proposal, and made the change upon the following, among other, conditions. The council of the municipality was to give its consent to the company carrying its line or lines of railway upon, along or across the southerly forty—six feet of an unnamed highway, with full and exclusive

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right to the company forever to use and enjoy the same for the purposes of its undertaking. The company also undertook to purchase two strips of land, and out of those strips to dedicate twenty feet in width to the municipality, to be used as a highway, so that there would be on either side of the railway right-of-way two highways, each twenty feet in width, available for traffic. It has not been contended that by this bargain the municipality did not get ample consideration for the privileges granted the company. To give effect to this agreement a by-law was passed conferring on the council of the municipality power to "stop up and close from traffic as a highway" the said southerly forty-six feet of the highway, and to indemnify the company against claims or suits arising out of that proceeding. The effect of the by-law was to narrow the highway somewhat and to relieve the company of its statutory obligation to restore it after the rails were laid.

Actions were brought against the municipality by the plaintiff respondent and some sixteen others to enforce awards of arbitrators appointed to fix the compensation due them as owners of adjoining lands by reason of the narrowing of the highway, and the question for decision is: Had the corporation power by by-law to close a section of the highway in the circumstances set forth? The provincial Court of Appeal, on a previous appeal in these proceedings[2] maintained the by-law on the ground that by section 52, subsection 176, of the "Municipal Act" power is given to municipal corporations to pass by-laws

for establishing, opening, making, preserving, improving, repairing, widening, altering, diverting or stopping up

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public highways, and that those powers, read in the light of sub-section 193 of the same section, are sufficient to authorize the closing to traffic of the strip of the highway in question. I am of the same opinion, and would suggest that sub-section 190, referring to bicycle paths, might also be considered in this connection. It may be that, in certain aspects, the by-law is of doubtful validity, but the only objection urged here and in the court below is thus, stated in appellant's factum:—

The municipality defend this action on the same point of law as previously taken before Mr. Justice Clement and before the Court of Appeal, viz.,'that the council of 1913 had no power to stop up the strip of highway, that the assuming to do so was an ultra vires act, and, hence, no case existed for compensation, and the appointment of arbitrators was invalid.

It is not suggested that there was misconduct on the part of the council or that any of its members were moved by improper motives, and the provincial courts, which are necessarily more familiar with local conditions than we are, maintained the validity of the bylaw. The arrangement made appears to be a reasonable one and in the public interest. In any event, as Chancellor Boyd said in Re Karry and City of Chatham[3] :—

The court is not to sit in judgment upon the propriety or alleged unwisdom of the by-law if it admits of reasonable justification.

See also Rogers v. City of Toronto[4], at page 601, and in Kruse v. Johnson[5] , at page 99, it was said that by-laws of public representative bodies ought to be supported if possible.

The broad language of section 52, sub-section 176, read with 193 and 190, is sufficient to justify the action of the municipality in stopping up the strip of high-

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way in question in the special circumstances of this case.

I would dismiss the appeal with costs.

DAVIES J. (dissenting).—This is an appeal, per saltum, from the judgment of Mr. Justice Murphy, which involves a previous decision in these proceedings by the Court of Appeal for British Columbia[6] , the effect of which was to declare that power was vested by section 52, sub-section 176, of the "Municipal Act" to "narrow" a public highway, so that a railway company might have, when approved of by the Minister of Railways and the consent of the municipality, the right to run its line along a public highway, a question not in dispute, but a right to the exclusive possession of a strip of the highway.

The facts are stated in the judgment of Chief Justice Macdonald as follows:—

The appellant, a municipal corporation, entered into an agreement with the Pacific Great Eastern Railway Company, giving the company liberty to carry its line of railway along a public highway within the boundaries of the municipality, together with the exclusive right of possession of a strip of the highway 46 feet wide, which strip the appellant by by-law closed to public traffic. This left still open to traffic a strip of 20 feet in width of the original road allowance along the northerly side of the portion which has been so closed.

The railway company, on its part, agreed to purchase and dedicate as a highway a strip of land 20 feet wide on the southerly side of the said closed strip, so that the result of the by-law and agreement combined was that highways 20 feet in width were provided for traffic on each side of that portion of the original highway which was stopped up as aforesaid.

The sole question, apart from one of res judicata mentioned later, is whether the said sub-section 176 gave the municipality the power to narrow as well as to widen highways.

If they had such power, then the by-law purporting

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to give the exclusive right of possession to the railway company of a strip of the highway 46 feet wide which the respondent corporation closed to public traffic cannot be impeached.

I am of the opinion that the section in question does not give them such power. It was evidently carefully drawn and gave power to municipal corporations to pass by-laws

for establishing, opening, making, preserving, improving, repairing, widening, altering, diverting or stopping up public highways.

No express power to "narrow" such highways is given, and when such care seems to have been taken to expressly confer so many intended powers, it does not seem that a fair construction of the expressed powers would justify the inclusion of other powers very largely affecting the public rights and interests and not expressly given. Power to "widen" is given, also to "alter" or "divert" or to "stop up," and the use of these several powers and phrases seems to me to indicate the length to which the legislature thought it desirable to go.

The general policy of the Legislature of British Columbia seems, from the "Highways Act" and the land registry Acts, that these highways should not be less than 66 feet wide.

If the legislature intended to give municipalities power to narrow a highway 66 feet wide to one of 20 feet—a power which might so largely affect the general public—they surely would have expressed that intention by the use of the word "narrow" or some equivalent word.

The power to "alter" does not, I think include the power to narrow; if it did, it would also include the powers to "improve, repair, widen and stop up," which are each expressly given, and would be surplusage if

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"alter" included them. I think that, as contended for, the word alter should be limited to such acts as are not inconsistent with the highway as such.

If my construction is right, the by-law is void, and that disposes of the question of res adjudicata. Toronto Railway Co. v. Toronto Corporation[7].

I would allow the appeal and declare the by-law in question void.

IDINGTON J.—This is an action to enforce an award for compensation allowed to proprietors of lands adjoining a highway on account of the closing of part thereof.

The contention of the appellant herein is that its council had no power by virtue of section 53 of the "Municipal Act," enabling it to make by-laws, and pursuant to one of the objects of such power expressed in sub-section 176, which reads as follows:—

For establishing, opening, making, preserving, improving, repairing, widening, altering, diverting, or stopping up roads, streets, squares, alleys, lanes, bridges or other public thoroughfares,

to close the part of the highway in question

The by-law in question closed a strip 46 feet wide on the southerly side of a street 66 feet wide.

An agreement was entered into with a railway company whereby it was provided that the railway company should occupy and use the part so closed, and secure for appellant a new road 20 feet wide on the southerly side of the said 46-foot strip. The effect of the agreement being carried out would be that the respective proprietors and the public would have, in lieu of the old road allowance, two roads of 20 feet wide, one on each side of the railway, and that the railway company would abandon its application pending before

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the proper authority to construct its proposed railway along the adjacent foreshore.

The cross streets were not to be closed. The neat point is whether or not the council acted ultra vires in closing part of the street.

The sub-section in question evidently was copied substantially from Ontario legislation tracing back to the origin of municipal institutions in that province when known as Upper Canada.

Beyond all manner of doubt the power to close or "stop up" cross sectional parts of streets has been exercised in scores of cases, and, so long as not depriving people of ingress and egress to their properties, has been treated as within the power of the respective municipal councils having jurisdiction over their highways.

I am unable to distinguish as a matter of legal construction the power to close a cross—section from that to close a longitudinal section of a street.

The occasions for exercising the former class certainly will, in number, far exceed those likely to happen in the latter class. I should be loath to cast a possible doubt upon the titles of those, in Ontario, for example, resting upon such an exercise of municipal power conferred by said language.

The words "alter" and "stop up" comprehend the whole, if need be, and surely as descriptive of a bare power must be held to cover the part in either class of cases.

I think that the closing of part of the street was, as held by the Court of Appeal, on a previous appeal in these proceedings[8] , intra vires the council, and hence the appeal should fail.

The question of whether or not the motive for

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doing so was proper is one that, if impeachable, should have been attacked by way of a motion or action to quash. So long as the by-law stands, and is intra vires, I do not think it can be treated as void and proceedings thereunder held null.

We heard much argument on the illegality of the bargain and the impropriety of it. It may be, when due regard is had to sections 332 and 333 of the Act, that the effect of closing the street was to leave the land vested in the Crown, and the acts of the Minister authorizing the railway company may turn out to have been rested on the right of the Crown to so appropriate the land so abandoned by the exercise of the council in closing the street. Indeed, that may have been part of the scheme for meeting a complicated situation arising out of a desire to save the foreshore from railway invasion.

I express no opinion on the subject of the right in law to do so. I only desire to point out that others not parties to this proceeding ought to be before the court and be fully heard before we should pass upon such an inquiry as started thus.

To allow the appeal and dismiss the respondent's action, which seems well founded, would possibly leave the maintenance of this application and use of part of the highway to continue and respondent without a remedy, for the judgment could not bind the Crown or the railway company.

The decision of the Judicial Committee of the Privy Council in the case of the British Columbia Electric Railway Company v. Stewart[9] and the United Buildings Corporation v. City of Vancouver[10] seem to render untenable the objection to the by-law by reason of its not having the sanction of the ratepayers.

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I do not overlook the principle that what cannot in law be done directly cannot properly be accomplished by an indirect and improper method.

If there was anything done for the mere purpose of evading the salutary provision requiring submission to the electorate, then it should have been developed by bringing all concerned before the court as already suggested.

The appeal should be dismissed with costs.

ANGLIN J.—I am not prepared to overrule the unanimous judgment of the British Columbia Court of Appeal, in the previous appeal in these proceedings[11] holding that, under the powers conferred by section 53, sub-sec. 176, of the "Municipal Act" (R.S.B.C., 1911, ch. 170), the appellant municipal corporation has power to partially stop up a highway, as was done in this case. It may be that the circumstances under which the by-law in question was passed and the motives that prompted it were such that in a proper proceeding it might have been quashed. But in this action, brought to recover the amount of compensation awarded in consequence of the partial closing of the highway, upon the issue as to the validity of the by-law the only question open is the power of the municipal corporation to pass it. I express no opinion upon the estoppel invoked by the respondent alleged to arise out of the proceedings on the application for the appointment of arbitrators.

BRODEUR J.—This is an appeal, per saltum, from a judgment rendered by the Supreme Court of British Columbia confirming the award of arbitrators appointed under the provisions of the "Municipal Act" of British Columbia. The corporation appellant, in its st te-

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ment of defence, claims that the appointment of arbitrators was ultra vires, and that its own by-law, which has given rise to the claim for compensation, was ultra vires.

When the application was made by the present respondents for the appointment of the arbitrators, the questions now raised in the statement of defence were also raised before the judge of the Supreme Court to whom the application had been made, and he decided that he had jurisdiction, that he could appoint the arbitrators, and his judgment was unanimously confirmed by the Court of Appeal.[12]

I agree with the Court of Appeal in the construction they have made of section 53, sub-section 176, of the "Municipal Act," and I concur in the reasons which have been given by the Chief Justice of the Court of Appeal on that question.

It was claimed by the appellant that the by-law in question in this case should have been submitted to the electors.

I find, however, a decision of the Privy Council in the case of United Buildings Corporation v. City of Vancouver[13] in which it was decided that a by-law stopping up part of a street did not require the sanction of the municipal electors.

For these reasons, I am of opinion that the appeal should be dismissed with costs.

Appeal dismissed with costs.

Solicitors for the appellant: Bird, Macdonald & Ross.

Solicitors for the respondents: Taylor, Harvey, Grant, Stockton & Smith.        

[1] 21 B.C. Rep. 401.

[2] 21 B.C. Rep. 401

[3] 1 Ont. W.N. 291.

[4] 7 Ont. W.N. 600; 33 Ont. L.R. 89.

[5] (1898) 2 Q.B. 91.

[6] 21 B.C. Rep. 401.

[7] 73 L. J. P. C. 120.

[8] 21 B.C. Rep. 401

[9] (1913) A.C. 816.

[10] (1915) A.C. 345.

[11] 21 B.C. Rep. 401.

[12] 21 B.C. Rep. 401.

[13] [1915] A.C. 345.





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