Supreme Court of Canada
Association des Propriétaires des Jardins Taché Inc. et al. v. Entreprises Dasken Inc. et al., [1974] S.C.R. 2
Date: 1971-12-20
L’Association des Propriétaires des Jardins Taché Incorporée and Dame Renée Joyal Brossard (Plaintiffs) Appellants;
and
Les Entreprises Dasken Inc. and Aylmer Road Holdings Inc. (Defendants) Respondents;
and
La Cité de Hull and others Mis-en-cause.
1971: October 19, 20; 1971: December 20.
Present: Fauteux C.J. and Abbott, Martland, Judson, Ritchie, Spence and Pigeon JJ.
ON APPEAL FROM THE COURT OF QUEEN’S BENCH, APPEAL SIDE, PROVINCE OF QUEBEC
Municipal law—Zoning by-laws—Interpretation—Meaning of “de” (from)—Single-family residential zone—Non-official zoning plan—Injunction and demolition order—Association—Ratepayer in same zone—Code of Civil Procedure, art. 55, 59—Cities and Towns Act, R.S.Q. 1964, c. 193, s. 426(1)b.
The plaintiff Association is a non-profit company whose objects are among others “to preserve the predominantly residential character of Taché Gardens” and “to promote and safeguard the interests of property owners and tenants.”
This housing development grew up in the City of Hull around the Orphelinat land, on each side of Moncion Street where the house purchased by the plaintiff Dame Brossard, in 1970 is located. It is located in a single-family dwelling zone namely zone RA-2 described in By-law 835 adopted in 1963. In the City of Hull, the by-laws were never accompanied by an official plan. However, after By-law 835 was adopted, a “Zoning plan” was prepared in 1963 by “the City Engineer’s Department” of the city. Zone RA-2 is shown as including all the land of the Orphelinat. However, a new zoning plan prepared in 1969 did show the Orphelinat land as being located in zone CA-22 set up by By-law 657 adopted in 1957. This commercial zone consists of “the north side of Taché Boulevard, from the Orphelinat to western limits of the City.”
It is on a part of the Orphelinat land sold to third parties and resold to Aylmer that Dasken undertook, in October 1970, to build two ten-storey apartment
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buildings. Building permits had been issued on the basis that the site was in zone CA-22 in conformity with the plan of 1969. The Association called on the city to cancel the permits because the land in question was in zone RA-2. As the city did not accede to this demand an action was brought by the plaintiffs who obtained a judgment declaring the permits void and ordering defendants Aylmer and Dasken to cease operations and return the site to its original condition. This judgment was reversed by the Court of Appeal. Hence the appeal to this Court.
Held (Abbott and Judson JJ. dissenting): The appeal should be allowed.)
Per Fauteux C.J. and Martland, Ritchie, Spence and Pigeon JJ.: The plaintiff association does not own property and the fact that its members may have the interest required by C.C.P. 55 does not exempt it from the rule of C.C.P. 59.
Nothing in the description of zone CA-22 makes it possible to interpret the reference to the Orphelinat land as other than a boundary or starting point. Even though the 1963 plan was not prepared by the Council and has no conclusive value, it is nevertheless an indication which is far from being worthless. That plan was the interpretation given to the 1957 by-law—which set up zone CA-22—immediately after promulgation of the 1963 by-law setting up zone RA-2. This interpretation was maintained for six years and is certainly not suspect. Finally, the description of zone RA-2 can in no way be reconciled with the contention that zone CA-22 includes all the Orphelinat land.
The principle that a landowner is to be given the benefit of doubt regarding any limitation of his right to use his land as he sees fit is not applicable to this case because it must be held that the land in question is certainly within zone RA-2.
Mrs. Brossard, as owner of immoveable property in the zone, had a sufficient interest to institute proceedings. As a ratepayer owning immoveable properties in a zone created by a building by-law she was entitled to attack any by-law altering the zoning without the necessary approval of the majority of the owners of property located in the same zone. A fortiori should her right to such remedies be admitted when, without ever passing an amending by-law, the municipality purported to authorize buildings which the by-law forbids. The interest which she had in
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preserving the single-family residential character of the zone appears sufficient to justify her suit without any evidence of pecuniary loss.
The application for an injunction was made with all due diligence and the extent of the loss involved in the demolition order depends on the decision of the owner to take the risk of going ahead with the work after the protest, the institution of proceedings and the motion for an injunction.
Per Abbott and Judson JJ., dissenting: The zoning by-law depends for its validity upon such statutory authority as may be granted to a municipality by the Legislature to enact such a by-law in the public interest. Any such by-law is discriminatory because forbidding the construction of certain types of building in a zoned area and permitting others; it may constitute a form of expropriation without compensation. Then it is essential that the area affected by it be described in clear and precise terms. The description contained in the by‑laws purporting to create zones CA-22 and RA-2 does not meet that test. In the circumstances defendants had the burden of establishing that the City was manifestly wrong in its interpretation and reading of the relevant by-laws and plans. This error was not established.
Regarding plaintiff Brossard, she is not entitled, without showing some damage peculiar to herself, to an injunction to prevent construction or for an order to demolish work already completed. Under s. 426(1)b of the Cities and Towns Act, in zoning cases of this kind, such exceptional rights belong only to the municipality and not to the individual ratepayer.
APPEAL from a judgment of the Court of Queen’s Bench, Appeal Side, Province of Quebec, reversing a judgment of Ste-Marie J. Appeal allowed, Abbott and Judson JJ. dissenting.
L.-P. de Grandpré, Q.C., V. Bergeron and Roland Bélec, for the plaintiffs, appellants.
J. Martineau, Q.C., and M. Schacter, Q.C., for the defendants, respondents.
A. Geoffrion, Q.C., and M. Beaudry, for the mis-en-cause, respondents.
The judgment of Fauteux C.J. and Martland, Ritchie, Spence and Pigeon JJ. was delivered by
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PIGEON J.—This appeal is brought by special leave against a decision of the Court of Appeal of the province of Quebec, dated March 24, 1971, which reversed the judgment delivered by the Superior Court on December 9, 1970. That judgment maintained the action of plaintiffs, now the appellants, declared some building permits void and ordered defendants, now the respondents, to cease their building operations and return the site to the condition it was in before the permits were issued.
The Association des Propriétaires des Jardins Taché Incorporée (the “Association”) is a nonprofit company with no share capital, incorporated by letters patent issued under Part III of the Quebec Companies Act, and dated October 31, 1960. The objects mentioned in the letters patent are the following:
[TRANSLATION] 1. To organize the members to ensure the harmonious development of Taché Gardens, promote neat properties and foster community activities.------
2. To preserve the predominantly residential character of Taché Gardens.------
3. To secure the welfare and look after the interests of property owners, tenants and all persons domiciled or resident in Taché Gardens.------
4. To promote and safeguard the interests of property owners and tenants, make representations to public agencies for this purpose, and take any other useful steps.------
The housing development known as “Taché Gardens” is situated on the western edge of the City of Hull, to the north of Taché Boulevard. It extends from St-François Street to the western limits of the city; however, the vast property of the Orphelinat Ste-Thérèse is located on the northwest corner of Boulevard Taché and St-François Street. That property originally extended some 1400 feet along the north side of Taché Boulevard and 1000 feet along St‑François Street. Its western boundary was a stream which crossed Taché Boulevard diagonally, forming a point the tip of which was sold off. Consequently, the housing development grew
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up around the Orphelinat land, particularly on each side of Moncion Street which forms a long curve about a hundred feet from the periphery and ends at St-François Street. The house which appellant Brossard purchased on September 2, 1970, is located at 60 Moncion Street.
According to the zoning by-law of the City of Hull, all land north of Taché Boulevard, between St-François Street and the western limits of the city, was formerly part of zone RC-5. According to art. 3 this was a [TRANSLATION] “single-family, two-family and apartment dwelling zone”. According to s. 80b of the City Charter, this zoning could only be altered in accordance with the formalities prescribed in s. 426 of the Cities and Towns Act, that is, by a by-law approved “by the vote, by secret ballot, of the majority in number and in value of the electors who are owners of immoveable property situated in each district or zone to which the proposed amendments… applies”.
In 1957, however, the City obtained from the Legislature the replacement of s. 80 b of its Charter by the following (Statutes 1956-57, c. 75, s. 4):
80b. By-laws 596 and 597 of the city, respecting construction and zoning, may until the first of July, 1957, be amended by by-laws of the council passed by two-thirds of the members and shall take effect as soon as approved by the Minister of Municipal Affairs and without any other formality. From and after the first of July, 1957, the admendments to the said by-laws shall be subject to the formalities of section 426 of the Cities and Towns Act.
Under this authorization the City, on June 25, 1957, adopted By-law 657, which added the following zones:
[TRANSLATION] ZONE CA-22. This zone shall consist of:
(a) the north side of Taché Boulevard, from the Orphelinat Ste-Thérèse to the western limits of the city.
The by-law on which this litigation is based is No. 835, adopted on April 2, 1963. It set up zone RA-2, described as follows:
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RA-2 [TRANSLATION] Of irregular shape, bounded on the north by zone RC-5, as described in this by-law; on the east by St-François Street, being the western boundary of zones RA-3 and CB-4; on the south by Taché Boulevard, being the northern boundary of zones CB-4 and CA-22; on the west by the western limits of the city and zone CA-22. The description of zones P-11 and P-12, as given in this by-law, shall be deducted from this zone.
The description of zones P-11 and P-12 is of no significance: they are not in the area we are concerned with. Similarly, the change made in zone R-5, to reduce its extent as a result of establishing new zones, is of no interest to us.
It may be immediately noted that the zoning by-laws were not accompanied by an official plan, and the zone descriptions contain no reference to a definite plan. However, the record shows that shortly after by-law 835 was adopted, a plan entitled “Zoning Plan” was prepared by what is described therein as “the City Engineer’s Department”. It is dated May 15, 1963. Zone CA-22 is shown in the plan as a very small quadrilateral north of Taché Boulevard. The western boundary is clearly that of the City. The eastern boundary is a line almost perpendicular to Taché Boulevard, apparently corresponding to what at that time was the western boundary of the Orphelinat land, allowing for the tip referred to above. The northern boundary of the zone is parallel to Taché Boulevard and drawn from the north end of the east line. Zone RA-2 is shown as consisting of the whole quadrilateral north of Taché Boulevard between St-François Street on the east and the city limits on the west, as far as the new southern boundary of zone RC-5, except for zone CA-22 and zones P-11 and P-12. Moncion Street, with the properties on both sides of it, is entirely within this quadrilateral, as is all the Orphelinat land.
A new “Zoning Plan” was prepared on February 3, 1969; it bears the notation “Prepared by P. Vigèle and J. Labelle, Technical Services”. On this document, zone CA-22 no longer con-
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sists only of the small quadrilateral mentioned above: it takes in all the large area of the Orphelinat, except for a quadrilateral of some 500 feet on each side at the corner of Taché Boulevard and St-François Street. And what about zone RA-2? It is now in two sections, one being the quadrilateral on which there is the Orphelinat building, the other comprising the properties along Moncion Street and certain adjoining streets.
The authors of the 1969 plan were not called upon to explain what caused them to interpret by-law 835 in this way. One witness mentioned a legal opinion, but as the author had not been summoned as a witness, it was not allowed to be introduced in evidence. The record does show, however, that the plan indicating the portion of the Orphelinat land sold by a deed signed on August 6, 1969, is dated December 9, 1968. On this plan it can be seen that the portion of the cadastral lot which the nuns did not sell is a quadrilateral at the northeast corner of Taché Boulevard and St-François Street. That quadrilateral, especially on the north side, extends slightly beyond the portion of the lot on which the main building of the Orphelinat is located, the said portion being partly enclosed by a stone wall. It would be this area, enclosed by the stone wall, that is shown on the plan dated February 3, 1969, as a part of zone RA-2 separated from the remainder by a zone CA-22, that no longer comprises merely the small quadrilateral to the west of the Orphelinat land but now extends as far as St-François Street and takes in all the land which was to be included in the deed of sale of August 6, 1969.
On September 10, 1970, a part of this land was resold to respondent Aylmer Road Holdings Inc. (“Aylmer”). This part runs along St-François Street to the north of the area enclosed by the stone wall. This is the parcel of land on which respondent Dasken Enterprises Inc. (“Dasken”) undertook to build two ten-storey apartment buildings, each with 110 apartments. It applied for a building permit for the foundations on September 8, 1970, and a final permit on September 29, 1970. These permits
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were issued on the basis that the location of the proposed buildings was in zone CA-22 in conformity with the plan dated February 3, 1969.
On October 6, 1970, the same day that the building project was made public, the Asssociation through its lawyers served the City with a letter calling on it to cancel the permits. It stated that the lot on which construction had commenced was in zone RA-2. As the City did not accede to this demand an action was brought in the Superior Court on October 21 by the Association and Mrs. Brossard. This action asked the Court to declare the permits void and to issue an injunction against Dasken and Aylmer ordering them to cease operations and return the site to its original condition. The City, the City Clerk, the building Inspector and the Town Planner were summoned as mis-en-cause.
Judgment was given by the Superior Court on December 9, 1970, maintaining the action against Dasken, Aylmer and the City. The judgment declared the permits void, and ordered defendants Dasken and Aylmer to cease operations and return the site to its former condition. The reasons for the judgment were that the buildings undertaken were located in zone RA-2, in which single-family dwellings only were permitted, and plaintiff Brossard, a property owner in that zone, had the necessary interest for instituting the action.
This judgment was reversed by a decision of the Court of Appeal, dated March 24, 1971. The ratio decidendi, stated for the Court by Casey J., was as follows:
The Association does not own property and the fact that its members may have the interest required by CCP 55 does not exempt it from the rule of C.C.P. 59.
The other Respondent acquired her property sometime prior to September 2nd, 1970. The descriptions and the plans were there to be seen and read and she bought with her eyes open.
In these circumstances Respondents had the burden of establishing that the City was manifestly wrong in
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its interpretation and reading of the relevant by-laws and plans. This error was not established and for this reason and without discussing the other issues I would maintain these appeals and dismiss Respondents’ action.
It should be said first that the decision of the Court of Appeal, as it applies to the Association, is well founded. This organization is not entitled to exercise the rights of its members. It does not claim any other capacity than that conferred by its incorporation under Part III of the Companies Act. It does not describe itself as a property owner, alleging only that its members are property owners. The only decision on this point to which we were referred at the hearing is La Fraternité des Policiers v. Cité de Montréal[1]. That case dealt with a professional syndicate governed, not by the Companies Act, but by another statute which contains a provision giving it special powers to exercise the rights of its members with respect to certain acts prejudicial to the collective interest. Nothing of this sort is to be found in the statute governing the Association.
With respect to the plaintiff Brossard, respondents did not even attempt to sustain the reason given in the Court of Appeal. They admitted that the zoning plans in question were not official acts of the municipality, that it did not appear they had ever been submitted to the City Council, and that they were not a part of the zoning by-laws, which make no reference to them. All parties before the Court agreed that these plans were only working papers prepared by the municipal employees to facilitate application of the by-laws regarding construction. Respondents did not try to contend that the plan of February 3, 1969, indicated the boundaries of zones RA-2 and CA-22 correctly. They admitted that there was no basis for interpreting the description of zone RA-2 as forming two distinct sectors separated by CA-22. As regards interpretation of the by-law, the only contention submitted at the hearing was that zone CA-22 should comprise, not just the small quadrilateral north of Taché Boulevard between the
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Orphelinat land and the western city limits, but also the whole of the vast Orphelinat property as far as St-François Street, including the quadrilateral at the northwest corner of Taché Boulevard and St-François Street, which was not included in the sale on August 6, 1969. The only argument adduced in support of this interpretation was that the word “de” (from), it was said, indicated that a part of the thing in question must be included, and if any part was taken, then, it was argued, the whole, even if more than 1,000 feet, must be taken.
This argument is to be rejected for several reasons.
In the first place, it is not supported by lexicology. All the dictionaries ascribe more than one meaning to the preposition “de”. I need only cite the following passage from Quillet:
[TRANSLATION] it indicates the starting-point of a motion, a distance—“the area extending from the river to the mountain”.
Similarly, I need cite only one decision from the case law, that of this Court in City of Montreal v. Canadian Pacific Railway[2].
The City had concluded an agreement with the Railway Company, which included the following undertaking:
The corporation convenant that they will construct and maintain a bridge for highway purposes along Notre Dame Street, from Berri Street to Lacroix Street, as shown on the said plan…
Girouard J., speaking for the majority, said (p. 401):
The words from and to are not always exclusive. This depends upon the circumstances of each case. Suppose C. acquires a piece of land situated from B to C. Here the words are evidently exclusive. But when the deed provided that a certain piece of work is to be constructed, as in this case “along Notre-Dame Street from Berri Street to Lacroix Street as shown on the said plan,” the words mean as far as the plan shows, along Notre Dame, but not exceeding the most distant line of Lacroix Street.
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Nothing in the description of zone CA-22 allows us to interpret the reference to the Orphelinat land as other than a boundary or starting-point, as in the example given by Girouard J. Further, it is clear that if the intention had been to include all the Orphelinat land in this zone, the eastern boundary would have been given as St-François Street. Generally speaking, in the by-law streets mark the boundaries of the zones. The only possible reason for referring to the Orphelinat land and not St-François Street is the intention to exclude it from this small commercial zone.
That is not all. Though the 1963 plan was not prepared by the Council and has no conclusive value, it is nevertheless an indication which is far from being worthless. That plan was the interpretation given to the 1957 by-law—which set up zone CA-22—immediately after promulgation of the 1963 by-law setting up zone RA-2. This interpretation was maintained for six years and is certainly not suspect, as is that of 1969.
Finally, the description of zone RA-2 can in no way be reconciled with the contention that zone CA-22 includes all the Orphelinat land. The former is described as being bounded on the south by Taché Boulevard. According to the proposed interpretation, however, the southern boundary would be the Orphelinat land. It is true that there is an error after the reference to Taché Boulevard. The description between the commas: “, being the northern boundary of zones CB-4 and CA-22,” is incorrect as to zone CA-22, because Taché Boulevard is the southern, not the northern, boundary. This error does not affect the essential elements of the description or render it uncertain, at least in so far as the land referred to in this case is concerned.
Once the conclusion is reached that zone CA-22 is located north of Taché Boulevard, between the Orphelinat land on the east and the city limits on the west, there is no need to be
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concerned with the fact that the description of zone CA-22, like that of many other zones in the by-laws in question, does not define the boundary of the zone on the side opposite the street along which the zone is established. As the trial judge noted, even assuming that zone CA-22 extended eastwards to the land occupied by the Orphelinat building, it would still be to the west of the Dasken lot, which is situated north of the Orphelinat.
It was contended that a landowner must be given the benefit of the doubt regarding any limitation of his right to use his land as he sees fit. Even if this principle is accepted in its entirety, it is not applicable to this case because it must be held that the land in question is certainly within zone RA-2. The absence of any express description of the northern boundary of zone CA-22 might present problems with respect to other lots; this cannot be a reason for refusing to apply the by-law to a lot where these problems are not present. In my opinion the trial judge, in making the foregoing observation, did not express any doubt as to the validity of his interpretation of the description of zone CA-22, he merely avoided, as was his duty, making any finding beyond what was necessary for the purposes of the case.
It must now be considered whether appellant Brossard, as owner of a house in the zone concerned, had a sufficient interest to institute proceedings. Basically, the decisions of this Court in Robertson v. City of Montreal[3] and Orpen v. Roberts[4], are urged against such a view. In the latter case there was an application for an injunction to prevent a construction in violation of a City of Toronto by-law. The reasons of the majority, as stated by Duff J., as he then was, show, that the fact that the Legislature, after enacting, in 1904, a statute expressly providing that the municipality or any ratepayer
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could apply for an injunction if a building by-law was violated, later, in 1913, replaced that enactment by a section which provided only that the municipality could seek an injunction, was regarded as conclusive against a ratepayer’s right to institute such proceedings.
Robertson v. City of Montreal was an action in the Superior Court attacking the validity of a contract granting an exclusive right to an urban transportation company, and of the by‑law authorizing its execution. It was held in that case that the plaintiff did not have an interest entitling him to bring such an action merely by virtue of being a ratepayer. It must be noted that the City of Montreal was then, as now, governed by a special charter, not the general law, and nothing in that Charter provided that such a by-law must be approved by a vote of the ratepayers, as the Municipal Code and the Cities and Towns Act require in certain cases.
In a case which concerned a by-law authorizing a loan and a contract to build an electricity distribution system, and in which the plaintiff ratepayers contended that the by-law had not been given the necessary approval by a majority of the electors being owners of immoveable property, this Court admitted the right of action, affirming the judgment of the Court of Appeal, which had declared the by-law void and granted an injunction (La Malbaie v. Boulianne[5]). It is true that the point was not discussed in the reasons of the majority in this Court. The decision nonetheless implies that this Court approved the decision of the Court of Appeal, which was unanimous on that point, because the injunction could certainly not be sustained without holding that the plaintiffs had a sufficient interest. The record indicates that this question
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was raised in this Court, appellant’s factum mentions the decision in Robertson v. City of Montreal. Furthermore, in the Court of Appeal Tellier J., as he then was, said in reasons which unfortunately were not reported:
[TRANSLATION] Must plaintiffs have an interest distinct from that of the other ratepayers in order to be entitled to attack the by-law, resolutions and contract in question?
An affirmative answer would place the ratepayers in a strange situation. An illegal, arbitrary, oppressive, even ultra vires by-law could not be attacked by anyone if it affected all ratepayers alike. Provided it left no one out, and prejudiced the interests of every one alike, the municipal authority could ignore any act or rule of law, flout the ratepayers, tax, borrow money, contract debts beyond what the law allows, undertake, risk or compromise anything and everything, without being subject to the supervision and reforming power of the Superior Court and its judges and to their orders and control. This cannot be true. (C.C.P. 50).
No, a ratepayer does not have to have an interest distinct from that of the other ratepayers to be entitled to attack a by-law which taxes him illegally, or which affects his property otherwise than in the manner, on the conditions and to the extend permitted by law. The injury done to others cannot prevent him from feeling what affects him personally. The laws forbidding corporations to incur debts, or to tax beyond a certain limit, are made in the interest of all ratepayers together, and of each of them in particular.
Galipeault J. discussed the same point as follows:
[TRANSLATION] Plaintiffs, who are interested parties as electors and property owners of defendant, having prayed for a declaration of the nullity of the by-law and of the contract made thereunder, as being completely void, nonexistent and ultra vires the defendant, I feel there is no doubt they were entitled to bring an action in the Superior Court.
I fail to see how a different view could be taken in the case of a ratepayer who complains of a by-law requiring the approval of the majority of the electors who are owners of immoveable property and not having in fact obtained
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such approval, and in the case of a ratepayer owning immoveable property in a zone created by a building by-law, who complains of a by-law altering the zoning without the necessary approval of the majority of the owners of property located in the same zone. If such ratepayer is entitled to attack a by-law in a case of that kind and seek an injunction to prevent its implementation, a fortiori should his right to such remedies be admitted when, without even passing an amending by-law, the municipality purports to authorize a building which the by‑law forbids. Even though in this case the municipality itself did not issue the permit, it accepted responsibility for it, at least for the purpose of the proceedings, by contesting to the end the action in which it was summoned as mis-en-cause.
Turning now to the objection raised in this Court that appellant Brossard has not submitted any evidence of a pecuniary loss resulting from the building projects undertaken by Dasken, it is clear that the prohibition of all buildings other than single-family dwellings in the zone was intented to limit the population density, and it is equally clear that if 220 apartments are built on the lot in question, instead of some twenty houses, this will alter conditions in the neighbourhood. Plaintiff is entitled to trust that these conditions will not be changed by any means other than a by-law approved in the manner prescribed by statute. The number of members in the Association, its purpose and its attitude show clearly the importance of this limitation on the power of the municipal corporation in this matter. The interest which plaintiff has in preserving the single-family residential character of the zone appears to me sufficient to justify her suit.
To hold otherwise would have strange consequences. If, instead of tolerating the Dasken construction project in violation of the by-law, the municipal corporation had itself brought an action to have the permits issued by its officer declared void, and had applied for an injunction to stop the construction and require the proprie-
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tor to return the site to its original condition, the absence of evidence of pecuniary loss could certainly not have been pleaded against the suit. This follows from s. 426(1)b) of the Cities and Towns Act (enacted by s. 120 of c. 55 of the 1968 Statutes). This enactment cannot be taken as reserving the action in demolition exclusively to the municipality, because in the absence of any such enactment the right to an injunction and a demolition order exists under the general principles of the law of Quebec, as this Court held in City of Montreal v. Morgan[6]. The analogy between this case and the case at bar is undoubtedly not complete. The same principle should nonetheless apply to a ratepayer’s suit, provided the conditions stated in the foregoing extract from the reasons for judgment of Tellier J. in the Malbaie case are satisfied.
It can certainly not be contended here that the application for an injunction was not made with all due diligence. The record shows that a protest was served the same day that the Dasken project was announced. Proceedings were commenced fifteen days later. An interlocutory injunction was applied for and, on November 19, the parties accepted the judge’s suggestion that the action and the motion be heard simultaneously on December 1.
In these circumstances the extent of the loss involved in the demolition order depends largely on the decision of the owner to take the risk of going ahead with the work after the protest, the institution of proceedings and the motion for an injunction. While I am in agreement with the trial judge, I would allow a period of six months, instead of three, for the demolition order to be carried out.
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On the whole, I would allow the appeal of appellant Renée Joyal Brossard with costs against respondents Dasken Enterprises Inc., Aylmer Road Holdings Inc. and the City of Hull; set aside the judgment of the Court of Appeal and dismiss the appeal of Dasken Enterprises Inc. and Aylmer Road Holdings Inc., as well as that of the City of Hull, with costs to appellant Brossard, but without costs as against Association des Propriétaires des Jardins Taché Incorporée, and restore the judgment of the Superior Court in favour of appellant Brossard only, varying it, however, by extending to six months from the date of the judgment of this Court, the time within which the site is to be returned to its original condition and dismissing without costs the action and the application for an injunction, with respect to Association des Propriétaires des Jardins Taché Incorporée.
The judgment of Abbott and Judson JJ. was delivered by
ABBOTT J. (dissenting)—By their action, appellants asked for the revocation of certain building permits, issued by the City of Hull to the respondent Les Entreprises Dasken Inc., for the construction of two apartment buildings, alleging that they were being built in an area in which such buildings were prohibited under the relevant zoning by-laws of the City. Appellants also asked for an injunction to restrain further construction and for an order to demolish any works already done.
This action, which was contested by the City and by Dasken, was maintained by the learned trial judge, but his decision was unanimously reversed by the Court of Appeal. The present appeal, by leave, is from that judgment.
The relevant facts are stated by my brother Pigeon in his reasons and it is not necessary for me to repeat them.
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In the development of municipal institutions, the zoning by-law is a plant of comparatively recent growth. This type of by-law depends for its validity upon such statutory authority as may be granted to a municipality by the Legislature to enact such a by-law in the public interest. Any such by-law is discriminatory in the sense that it forbids the construction of certain types of building in a zoned area and permits others. As my brother Judson said in Township of Scarborough v. Bondi[7]:
The mere delimitation of the boundaries of the area affected by such a by-law involves an element of discrimination. On one side of an arbitrary line, an owner may be prevented from doing something with his property which another owner, on the other side of the line, with a property which corresponds in all respects except location, is free to do.
In essence, zoning by-laws may constitute a form of expropriation without compensation and it is essential that the area affected by them be described in clear and precise terms.
It is obvious that the description contained in the by-laws purporting to create zones CA-22 and RA-2—in issue in this appeal—does not meet that test. It follows that it is questionable, to say the least, whether a valid zoning was ever effected with respect to what are described in the said by-laws as zones CA-22 and RA-2.
As I have said, the learned trial judge held that the building in course of construction by Dasken was in violation of the City’s zoning by-law and granted the mandatory injunction asked for, but that judgment was unanimously reversed by the Court of Appeal.
After reviewing the facts, Casey J., speaking for himself, Hyde and Rivard JJ., said:
In these circumstances Respondents had the burden of establishing that the City was manifestly wrong in its interpretation and reading of the relevant
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by-laws and plans. This error was not established and for this reason and without discussing the other issues I would maintain these appeals and dismiss Respondents’s action.
I am not prepared to disturb those findings. That, of course, is sufficient to dispose of the appeal. However, since the question was argued at some length before us, I wish to add that, in my view, the individual appellant, Dame Brossard, who acquired her property on September 2, 1970, just prior to the institution of this action, was not entitled, without showing some damage peculiar to herself, to an injunction to prevent construction or for an order to demolish work already completed. I also agree with the opinion expressed in the Court below and by my brother Pigeon that the corporate appellant did not have the necessary legal interest to institute the present action.
My opinion is that under art. 426 (1) b of the Cities and Towns Act, R.S.Q. 1964, c. 193, and applying the principles stated by this Court in Orpen v. Roberts[8], in zoning cases of this kind, such exceptional rights belong only to the municipality and not to the individual rate-payer. Although Orpen v. Roberts originated in Ontario, the principle of municipal law which it established has equal force in Quebec. It has been referred to with approval in Morissette v. Cité de Québec et al[9] and in La Commission des Champs de Bataille Nationaux v. Roussin[10], both cases which involved the application of a municipal building by-law.
I would dismiss the appeal with costs.
Appeal of Dame Brossard allowed with costs; appeal of Association des Jardins Taché dismissed without costs, Abbott and Judson JJ. dissenting.
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Solicitors for the plaintiffs, appellants: Boulanger, Bergeron, Bélec, Hamon & Joyal, Hull.
Solicitors for the defendants, respondents: Mendelson, Rosentzveig, Shacter, Taviss, Shayne, Greenstein & Levitt, Montreal.
Solicitors for the mis-en-cause: Beaudry, Beaudry & Sarrazin, Hull.