Municipal Law

MUNICIPAL LAW

Cameron Harvey*

I. INTRODUCTION Again I must apologize for the absence of a section on assessment and taxation, and express the hope that a substantial section will be able to be included in the next survey.

II. LEGISLATION AND SOURCE MATERIALS No major changes in the legislative schemes of the various provinces occurred, and for obvious reasons a review of legislative amendments will not be attempted. Four books and two pamphlets of interest were published during the period of this survey: G. M. Adler, Land Planning by Administrative Regula- tion, (1971);1 L. D. Feldman, A Survey of Alternative Urban Policies, (1971); J. Lorimer, The Real World of City Politics, (1970);' The Future City, edited by L. Axworthy; ' Ontario Economic Council, Municipal Reform, (1971); Kates, Peat & Marwick, A Survey of Urban TransportationProblems and Policies in Canadian Municipalities, (1970). As well the following articles appeared: Marx, The Montreal Anti-Demonstration By-Law--Bad Everywhere; ' Stein, The Municipal Power to Zone in Canada and the United States;' McNairn, Airport Noise Pollution;' Todd, Municipal Control of Air Pollution in British Columbia," Stewart, The Municipal Power to License; Cook, Approaches to Local Government Reform in Canada: the Case of Winnipeg. 9 Chappell, Municipal Finance and Assessment; " Burns, Govern- ment in an Urban Society; " Hickey, The Changing Structure of Municipal

* B.A., 1961, University of Toronto; LL.B. 1964, LL.M. 1967, Osgoode Hall Law School. Professor of Law, Faculty of Law, University of Manitoba. Style and system of citation are those of the Review and not of the writer. It is assumed that readers will have read or are aware of the previous surveys of this series for these annual surveys are written as a continuum. This article covers the law to Nov. 1972. 'This book deals with the Ontario Municipal Board. 'For a review of this book see 4 MAN. L.J. 410 (1971). 3 This book deals with the reorganization of the municipal structure of metropolitan Winnipeg. 4MAN. LJ. 347 (1971). 549 CAN. B. REv. 534 (1971). 6 50 CAN. B. REv. 248 (1972). '6 U.B.C.L. REv. 261 (1971). 8 SPECIAL LEcruREs OF THE LAW SocIETY OF UPPER CANADA 269 (1971). 9 19 CAN. TAX J. 216 (1971). 104 MAN. LJ. 275 (1971). u 14 CAN. PuB. ADMiN. 415 (1971). Ottawa Law Review [Vol. 6:485

Government in Canada;12 Hutchins, La Dualitd Domaniale en Matire Muni- cipale; " Dupont, Droit des Collectivitis Locales; Chroniques Reguliares;" Quesnel-Ouellet, Rigionalisationet Conscience Politique Rggionale; La Com- munauti Urbaine de Quebec; " Laux, The Zoning Game Alberta Style; "

Greenspan, The Citizen and the Planning Law; 1' Jones, The Nature and Purpose of the Official Plan; ISBence, Thistletown: An Example of Federal- Provincial Partnership in Land Development; 1 Lyngseth, National Seminar on Intergovernmental Cooperation for Urban Development;0 Erickson, A Plea for the City; 1 Greenspan and Vaughan, How the Zoning Game is Played; ' and Havel, Grandes Villes, Nations et Empires: Une Carte Politique de la Nouvelle Socltg Industrielle Avancie. 23

III. JUDICIAL DECISIONS

A. Municipal Corporations Generally-Powers, Duties, Procedure at Meetings Regina v. Harrold"' involved the prosecution of a religious group for violating Vancouver's Abatement and Control of Noise By-Law while allegedly carrying on a legitimate religious exercise. The Crown successfully ap- pealed the quashing of the conviction, the Court of Appeal holding the by-law in question "is a law of general application and is no way directed to religious freedom or interference therewith." The learned judge delivering the judgment of the court put it: In effect the respondent's submission amounts to this, namely, that he Is exempt from all laws that in any way interfere with the manner in which and the means by which he sees fit to engage in the practice and propaga- tion of his particular religion, no matter how detrimental that may be to the other members of the community, excepting only laws enacted by the Parlia- ment of Canada. To take one example, that if his religion, as interpreted by whoever has been appointed to interpret it, permits its followers as a group to make their prayers and pronounce their teachings in the middle of the intersection of Hastings and Granville Streets, one of the busiest traffic spots in Vancouver, and thus block all traffic, he and all his fellow religion-

1298 CAN. CHART. Acc. 403 (1971). 1 12 C. DE D. 477 (1971). 1431 R. Du B. 113, 259, 353 (1971). Is4 CAN. J. POL. Sc. 191 (1971). 1 9 ALTA. L. REv. 268 (1971); 10 ALTA. L: REV. 1 (1972). 17 11 PLAN. CAN. 128 (1971). "SPECIAL LEcTuREs OF THE LAW SOCIETY OF UPPER CANADA (1971) 189. Also included in the same volume of Lectures are Steele, Subdivsion Control and Committee of Adjustment, 203, Conlin, Rezoning Applications and Official Plan Amendments. 221, and Smith, Building Permits and Mandamus Applications, 235. 1'99 OScOODn HALL LJ. 313 (1971). 20 14 CAN. PUB. ADmiN. 387 (1971). 2179 CAN. BANK. 36 (1972); also in the same issue at 24, The Growing Pains of our Cities. 22 6 LAw Soc. U.C. GAz. 50 (1972). 21 5 CAN. J. POL. SC. 120 (1972). - [19711 3 W.W.R. 365 (B.C.); noted in the last survey, 5 OTTAWA L. Rnv. 196, at 198 (1971). Summer 19741 Municipal Law

ists are quite free to do so, and only the Parliament of Canada can prohibit them. I am quite unable to accept such a submission. '3 From a case concerning what some people might term religious exhibi- tionism we can turn to Re Tresnak " which had to do with the refusal by a municipal council to licence a would-be strip tease impressario. The court held, notwithstanding the wording employed in, and the exclusionary clause added at the end of, section 246(5) of the Municipal Act-" of Ontario, that it could review the exercise of discretion delegated in the section, and that the licence refusal, based as it had been apparently on the immorality of such shows, was improper. The defence of the accused in Regina v. Sandier " was that the by-law involved was invalid in that through it the council had unlawfully delegated to the fire chief a discretion to be exercised solely by it. Pursuant to a power to enact by-laws concerning fire prevention and protection, the City of Toron- to had enacted a by-law which, inter alia, gave the fire chief the power "to inspect protection equipment in any premises and to make such orders . .. as he deems necessary." After a brief but adequate review of the relevant principles and authorities, and after pointing out that while the applicable "principles appear to be reasonably clear, the difficulty arises when their application to a specific case is considered", Mr. Justice Osler held that since "it would be an administrative nightmare if Council should be compelled to specify with particularity the type of fire-protection equipment required for each of the almost infinite variety of types of buildings to be found within a municipality as large as Metropolitan Toronto, . . . the matters left for decision by the chief... [were] of an administrative nature and as such ... [were] delegable by Council." "' This decision was reversed on appeal; " it was pointed out that the municipality had sought to implement a power specifically given to it to make such fire prevention regulations as it deems necessary by conferring on its fire chief the power to make such orders as he deems necessary. The court distinguished the case of Regina v. Joy Oil " on the basis that the delegation of power in the case at hand gave the fire chief a practically unlimited discretion throughout the municipality. Municipal enabling legislation is very seldom held or even argued to be delegating judicial type powers. An exception to this general state of affairs was Wiswell v. Metro. Corp. of Winnipeg;" Raes v. Plymipton " provides another example of a by-law being quashed on the ground that the municipal-

2Id. at 374. [19721 1 Ont. 727 (High CL). 27ONT. Ray. STAT. c. 284, (1970). "[1971] 2 Ont. 434 (High Ct.). 2Id. at 441. Along the way Mr. Justice Osler also dealt with a neat point concerning obiter dicta and res judicata. 30 [1971] 3 Ont. 614. 31 [19641 1 Ont. 119. 2[1965] Sup. Ct. 512, 51 D.L.R.2d 754. "[1971] 3 Ont. 445. Ottawa Law Review [Vol. 6:485 ity in passing it was discharging a judicial type function and gave no notice of the intended passage to the person affected. " Ian McF. Rogers in his text, The Law of CanadianMunicipal Corpora- tions, states that municipal corporations do not have any inherent power to submit matters to arbitration. ' Mr. Justice Stark in Collovino Bros. Con- struction Co. v. Windsor " doubted the correctness of this statement: Municipal corporations have power to make contracts for specific purposes, and the inclusion of clauses in contracts by which the parties agree in ad- vance to arbitrate their differences, are [sic] surely inherent in their contractual powers ... If a municipality voluntarily contracts, within its powers, to do something, and includes in the contract, a quite common form of arbitration clause . .. it must.., expect to be bound thereby." 11 In Lafarge Concrete Ltd. v. Coquitlam " the District of Coquitlam, pursuant to a power which provided that "council may by by-law regulate or prohibit . . . the removal of soil, sand, gravel [etc.] . . . and require the holding of a permit for such purpose and fix a fee for such permit.. .", enacted a by-law which in effect imposed a levy of 15 cents per cubic yard on any- one mining land and thus causing the removal of soil and other substances. This by-law of course affected primarily, if not entirely, gravel-pit operators who had formerly been required to pay only a fifty dollar annual fee; one of them attacked the by-law on several grounds including the argument that the by-law imposed an indirect tax. With respect to the indirect tax argument, the court easily concluded that the levy was "clearly an indirect tax beyond the powers of a province, and derivatively beyond the powers of a municipality." Concerning the other grounds the court dismissed them all, but did make the following frank and caustic comment on the contention that the levy constituted a revenue tax and not a permit fee: This argument, that a municipality cannot use an authorized licence or permit fee as a revenue tax, is chronically tendered in this Court on applications to quash revenue-producing bylaws. The argument was effectively annihi- lated in 1910 by Middleton, J. in Re Foster and Raleigh (1910), 22 O.L.R. 26, affirmed ibid. at 342 (C.A.), in the following passage, which has been so consistently followed that it has now become a part of the established fabric of municipal law in Canada. At p. 29 the learned Judge held: "By the British North America Act, sec. 92(9), power is given to the Province to make laws in relation to 'shop, saloon, tavern, auctioneer, and other licenses in order to the raising of a revenue for Provincial, local, or municipal purposes.' When the Province delegated to the municipality the power to

'See also Re Anzil, [1971] 2 Ont. 713 (High Ct.), and Bay Willago Shopping Centre v. Victoria, [1971] 5 W.W.R. 684 (B.C. Sup. Ct.) in which the WIswell situation was distinguished from the somewhat similar situation involved and in which the court dealt with the power of councils to reconsider motions that fail to carry the first time; but see Re Governors of the Univ. of Calgary and Cormack, 19 D.L.R.3d. 310 (Alta. Sup. Ct. 1971). "At 1295 (2d ed.). 11[1972] 3 Ont. 455 (High Ct.). 37 Id. at 459-60. - [1972] 3 W.W.R. 539 (B.C. Sup. Ct.). Summer 1974] Municipal Law

make laws regarding 'licensing', and also the express power to fix a license fee, without any restriction or limitation, it must be taken to have handed over to the municipality the full power conferred by the section quoted- the right to exact a license fee for raising a revenue for municipal purposes. The whole scheme of the Municipal Act [1903 (Ont.), c. 19] is the delegation to the local municipalities- within the prescribed limits- of the full and plenary jurisdiction pos- sessed by the Legislature itself. When it has been deemed wise to limit the amount to be charged as a license fee, this limitation has been expressly made. When no limit, the discretion of the council is the only guide, subject to the qualifications above indicated, that the fee must be honestly imposed as a license fee, and not with the view of prohibiting." Why this ancient ghost of an argument, in the last 62 years so many times exorcized by clear and emphatic judicial decision as to be now battered into total oblivion, is conjured up by so many otherwise competent counsel when attacking a revenue bylaw, becomes a greater mystery as each year passes. "

The Shops Regulation By-law of the City of North Vancouver provided for closing hours to be observed, as well as exempting pursuant to section 861 (1) of the Municipal Act"' of British Columbia, inter alia, "drugstores" from the normal closing hours. The centre of controversy in Re London Drugs ' was an amendment of the definition in the by-law so as to enable drugstores to sell some items that one would normally find in a variety and confectionery store but at the same time expressly prohibiting the sale of some items particularly of the nature that one would find in a hardware store. The amending by-law was attacked for being discriminatory in that its passage was occasioned by the advent of a particularly large drugstore type business, for being uncertain and vague, and for being in excess of the power delegated pursuant to which it was enacted. The court easily disposed of all three grounds. With respect to the alleged uncertainty the court found no more than "difficulty in interpretation [which] is not to be confused with vagueness and uncertainty to the point of invalidity." Con- cerning the by-law's alleged discriminatory aspect, the court found that while it probably was prompted by the commencement of the applicant's business, the by-law was of general application. Regarding the ultra vires argument, the court pointed out that the power in question, delegated through section 857(1), was a power "to define classes of shops" in connection with closing by-laws and that that was what the municipality had done. The court distinguished cases where a municipality had tried to subdivide classes of shops where its power was to require "all or

3 Id. at 540-41. The High Court decision was unanimously reversed on appeal, [19731 1 W.W.R. 681 (B.C.). The court held that while the province and its municipalities can only impose direct taxes, the province, pursuant to § 92(9) of the B.N.A. Act, can empower municipalities to impose a "disguised taxation of an indirect nature" where that tax is ancilliary or adhesive to the licensing scheme of regulating or prohibiting a trade. 4 0 B.C. REv. STAT. c. 255, (1960). 4'24 D.L.R.3d 305 (B.C. Sup. Ct. 1972). 490 Ottawa Law Review [Vol. 6:485 any class or classes of shops to be closed" and where a municipality was legislating pursuant to a power "to enumerate" classes of shops. Re Sibley' involved an application for a mandamus to compel the issuance of a building permit; alternatively, it was contended that the order should be granted because the by-law standing in the way of the issuance of the permit was ultra vires the municipality. The court refused to deal with this contention, because the time had passed for launching an application to quash the by-law in question. The court referred in this connection to what it considered to be a similar refusal to make such a declaration in an earlier Ontario case; '"but, in that case the proceeding by which the matter had come to court was not valid, being out of time, unlike the mandamus proceeding in the case at hand which was perfectly legitimate. Fortunately, however, the court still gave the applicants the mandamus order to which they were entitled by finding that the prohibitory by-law had been impliedly repealed by the passage of a subsequent by-law, and that their application for a building permit had been improperly refused. Curiously, and hopefully inadvertently, the process used in Re Gover- nors of the University of Calgary and Cormack ' to quash a by-law was called a certiorariapplication when in fact it undoubtedly was the statutory application to quash; the importance of keeping these two remedies separate and distinct is severalfold and should be obvious. The court pointed out the distinction between the limitation period in the Municipal Government Act ' of Alberta which requires that such applications simply be "made", i.e., launched, within two months, and that of the Municipal Act of British Columbia which, as held in Re Merry ' requires that such an application not only be commenced but also be heard within the time limitation stipulated. The court referred for support to a similar holding by the Saskatchewan Court of Appeal in Bearss v. City of Regina. " I think that it would be worth reiterating here a point which I have made before, namely that in my opinion the tendency towards greatly shortening the limitation period on the motion or application to quash a municipal by- law, especially if the limitation period on the action for a declaration in connection with municipal by-law is made co-terminus with it, is extremely regressive since municipal by-laws usually do not receive much real publicity before or at the time they are passed; with the consequence that they may only come to the attention of those who might wish to take issue with them after the time has elapsed within which a frontal attack could have been made. In regard to another point in this case, the court found nothing wrong with the fact that the mayor had only signed the by-law in question a few

4[1972] 2 Ont. 737 (High Ct.). 42a Re Clements, [19601 Ont. 18. 4"Re Governors of the Univ. of Calgary and Cormack, 19 D.L.R.3d 310 (Alta. Sup. Ct. 1971). "ALTA. REv. STAT. c.246, s. 111(1), (1970). 34 D.L1R.2d 594 (B.C. 1962). 465 D.L.R.2d 199 (Sask. 1956). Summer 1974] Municipal Law months after it had been enacted. With respect to a further contention that the by-law was invalid because all three readings were given to it at one meeting and there was no record in the minutes showing that the necessary unani- mous consent of those members present to do this had been obtained, the court applied the omnia praesumuntur presumption and no evidence had been put forward either that the necessary consent had not been obtained or that the third reading although indicated only to have "carried" had not been passed unanimously. ,' Saskatchewan Wheat Pool v. City of Regina " reiterates that in connection with a notice required to be given by statute a complete failure to give the notice would amount to non-compliance and constitute a void defect; but, imperfect compliance or irregularity in giving the notice, so long as it does not amount to a complete failure, constitutes only a voidable defect which can be cured by the affluxion of time. Local improvements were again the subject of three reported cases. And, once again the definition of "local improvement" was the key to the outcome of an attack on the validity of a by-law, this time in Alberta; " the court simply applied Re Campbell. "' In another case, Re Thibodeau Ex- press Ltd. and Chatham "' petitions for a local improvement were altered by a municipality's engineer so as to make them petitions for a different local improvement, without the knowledge of the petitioners. The clerk of the municipality knowingly certified the petitions as sufficient; this the court stated was "highly improper conduct." The court therefore upheld the quashing of the by-law passed pursuant to the petitions, notwithstanding that a section of the relevant statute provided that "[t]he sufficiency of a petition . . . shall be determined by the clerk and his determination . . . evidenced by his certificate . . . is final and conclusive", for the court held that what had been attacked was not the sufficiency of the petitions but rather their validity. The third case, Preston v. Langs "' a decision of the Supreme Court of Canada with Mr. Justice Laskin dissenting, dealt with the imposition of rates to defray the cost of sewer installation pursuant to section 362 of the Ontario Municipal Act "' and section 54 of the Ontario Water Resources Commission Act. ' Passing references might also be made to several other cases. One of the issues in Mgthot v. Qu6bec ' was whether the City of Quebec could not only proscribe the use of motor cycles on specific streets but from a whole

47 But see: Brown v. Caledonia, 27 D.L.R.3d 597 (Sask. Q.B. 1972). - [19711 4 W.W.R. 658 (Sask.). 49Lehr v. Bassano, [1972] 4 W.W.R. 452 (Alta. Sup. Ct.). " 6 D.L.R.3d 456 (Sask. 1969), noted in the last survey. 5 OTrAWA L. REv. 196. at 199 (1971). 51 [1972] 1 Ont. 858. 5225 D.L.R.3d 430 (Sup. Ct. Can. 1972), noted briefly in the last survey, 5 OTTAWA L. REv. 196, at 200. note 32 (1971). 53 ONT. REv. STAT. c. 284 (1970). 4ONr. REv. STAT. c. 332 (1970). "5[1971] Qu6. c.s. 423. Ottawa Law Review [Vol. 6:485 district, in this case old Quebec. Fortin v. St. Joseph D'Alma " had to do with a failure to follow the prescribed procedure for enacting a resolution, and with the jurisdictions of the Municipal Court and the Superior Court to entertain attacks on resolutions. George v. Vaughan "' involved as the court put it, "an ingenious plan", the purpose of which was to establish a system for the disposal of refuse generated by the defendant and a neighbouring municipality. A sanitary landfill was to be operated within the territory of the defendant by a private individual, from whom the site had been purchased; this individual was to have certain rights with respect to the gravel that would have to be mined to provide the space to dump the refuse. The issues in the case were whether the municipality was in reality participating in a private business venture which of course would be beyond its ability, whether the operation of a sanitary landfill would contravene the municipality's official plan, and whether the scheme was ultra vires the municipality because it was not primarily for the benefit and convenience of its inhabitants but rather for those of the neighbouring municipality. It involved the operation of a municipal gravel pit not entirely for the needs of the municipality, and the sanitary landfill would contravene a by-law of the municipality which prohibited out- door storage of goods and material. The court, mindful of the fact that what it was being asked to do was to continue an interim injunction in connection with an action for a permanent injunction with respect to the municipality implementing the scheme, held against the applicants on all counts.

Leblanc v. Transcona,'" which is currently on appeal to the Supreme Court of Canada from a split decision of the Manitoba Court of Appeal, concerns the (cost sharing) arrangement between the federal, provincial and municipal levels of government for providing social assistance in Manitoba; this arrangement is implemented through the Canada Assistance Plan, ' The Social Allowances Act, " and municipal by-laws. It is provided that a person may apply either to a municipality or to the Province directly for social or welfare assistance. The schedule of payments and qualifications of a municipality and the Province may differ. If a person applies to a municipality and is dissatisfied with the result, he or she can appeal to a designated board. The issues involved in this case concern the scope of the appellate powers of the board, given the statutory language setting out its terms of reference. The board in this case substituted for a municipal decision to give a certain amount of assistance, an order that the municipality furnish more assistance according to the Province's schedule of payments, and in making the order the board took into account the debt situation of the applicants. Section 213 of the Municipal Act ' of Ontario which has to do with the

56 [19711 Qu6 c.s. 237. 57CN. REv. STAT. c. C-1 (1970). 58 [1971] 4 W.W.R. 23 (Man.). 59 CAN. REV. STAT. c. C-1 (1970). 60 MAN. REV. STAT. c. S160 (1970). 01ONr. REv. STAT. c. 284 (1970). Summer 1974] Municipal Law appointment by a municipal council of a substitute for the head of the council to "any board, commission or other body" was considered by Mr. Justice Holden in Re County of Peel and Town of Mississauga. " The question was whether "other body" was to be interpreted widely to include in this case the county council or was it to be interpreted narrowly as a result of the applicability of the ejeusdem generis rule? The learned judge refused to apply the ejeusdem generis rule, preferring to give the words "other body" their natural unrestricted meaning thus including the county council. About the only remarkable feature of Township of Marathon v. Irwin was the fact that from one point of view it amounted to an attack by a municipal corporation on one of its own by-laws. The newly-created plaintiff Township, by way of an action for a declaration, questioned its responsibility for a liability arising out of a by-law, which it ostensibly assumed from the predecessor Improvement District and which had to do with a retirement allowance provided by the District pursuant to what is now section 239 of The Municipal Act. " The Township questioned its liability on several grounds: that the by-law had been passed in bad faith and not in the public interest; that the by-law was ultra vires for several reasons relating to the particular fact situation involved, including the fact that the District in taking a pre- liminary step leading up to the by-law in question had used a resolution instead of a by-law; and that the by-law in question was defective in form in that it had not been signed by the chairman of the pertinent council meeting at, or right after the meeting; that a note had been typed at the bottom of the by-law below the signatures concerning the by-law; that one of the signatories had been improperly appointed to the office pursuant to which he was signing; and that the person being compensated had improperly not participated in the passage of the by-law in question according to section 199 of The Municipal Act. On all points the action was easily dismissed. On the form of the judicial proceeding and the outcome it seems to me that the proceeding would have been more correctly framed as an action for a declaration concerning the validity of a certain by-law, rather than an action to have a certain by-law declared void, and that the disposition of the action should more properly have been a declaration of validity rather than a dismissal of the action. It is difficult to imagine what prompted the reporting of Regina v. Knapp and Wright" which had to do with a by-law of the City of Victoria. The by-law was allegedly passed pursuant to either section 461 (1) or section 870(m) of The Municipal Act" of British Columbia; the by-law proscrib- ed the distribution of advertising pamphlets in certain areas. The owner and an employee of a horse and carriage sightseeing business were charged with violating the by-law; the charge was dismissed and this dismissal was upheld on the ground that neither section supported the by-law.

"[1971] 2 Ont. 197 (High Ct.). '[1972] 2 Ont. 75 (High Ct.). ONT. REv. STAT. c. 284 (1970). "21 D.L.R.3d 373 (B.C. Sup. Ct) 1971. "B.C. REv. STAT. c. 255 (1960). Ottawa Law Review [Vol. 6:485

B. Councillors: Election, Disqualification, Replacement, Accountability Section 119 of The Municipal Act 7 of Ontario "stipulates that the clerk [of the municipality], at noon on the second day following the day on which the polling is held, shall publicly declare to be elected the candidate having the highest number of votes, and shall also put up in some conspicuous place a statement under his hand showing the number of votes for each candidate." 0, This requirement was held to have been fulfilled when the clerk tabulated the election results on a blackboard at a municipal hall before a crowd on election night." The tabulation of votes was still on the blackboard at noon of the second day following the election day, when according to the second part of section 119 it became official. It was from this point in time, the court further held, that the fourteen day limitation period for initiating a recount began to run and not from the election night when the tabulation had actually been posted. Councillors who have a potentially disqualifying interest in a company that does business with the municipality do not, by complying with section 119(7) of The Municipal Act' of Ontario, (i.e. declaring their interest and refraining from the discussion and vote when their companies' contract or tenders come before the council,) necessarily gain exemption from disqualification pursuant to section 36(3) (a); in Hurdon v. Jones," considering the circumstances, the court held that, notwithstanding the fact that the aldermen involved had "acted openly, in good faith and .... honestly and in what each considered to be in the best interest of the municipality"," each of the aldermen had forfeited his right to sit on council. Does an alderman who commences an action involving the municipality leave himself open to a disqualification proceeding notwithstanding the fact that the alderman was not seeking out of the action any pecuniary or substantial relief from the municipality? The court in Re Grys & Stratton "' easily answered this question in the affirmative, referring to McLean v. Whitton. "' More difficult to resolve was the issue whether, once the disqualifying act described in section 36(1)(r) of The Municipal Act" was committed, an alderman is liable for the remainder of his term to a disqualification proceeding being undertaken, or whether he can purge or remedy his misconduct. After reviewing some helpful authorities-no authority could be found directly on point-and comparing section 36(1) (r) with other similar sections, the court accepted the contention that the Legislature only intended section 36(1) (r) to be operative so long as the situation described therein continued

"7Supra, note 64. "Re Seguin and Bercier [1972] 1 Ont. 685, at 686 (Co. Ct.). 69 Id. TOSupra note 64. 71[1972] 2 Ont. 541 (Dist. Ct.). 7 Id. at 541. "[1972] 2 Ont. 227 (High Ct.). "[1968] 1 Ont. 128 (High Ct.). 75 Supra note 70. Summer 1974] Municipal Law in effect; that is to say, a disqualification proceeding commenced after the situation had come to an end in one way or another would be too late. " Kamstra v. Caldarelli 6 concerned a relator proceeding for a disqualification order, pursuant to section 153 of The Municipal Act " of Ontario, against a councillor who was a partner in a law firm involved in litigation with a municipality which arose in connection with the passage of an expropriation by-law. The case deals with the meaning to be given to the requirement that such a proceeding must be commenced "within six weeks after the facts come to the knowledge of a person entitled to be a relator"," and the materiality of the motives of the relator. 7' Mr. Justice Keith hearing the appeal was impressed enough with the dogged perseverance of the relator in this case to remark at the outset of his judgment that in view of the "decidedly tortuous course" which the proceeding had pursued, "a less tenacious relator might well have given up the effort and expense and the community would have been decidedly the poorer had he done so." ' Kamstra v. Fabbro " was another relator proceeding to un- seat another councillor who allegedly had a pecuniary interest in the same expropriation by-law, and who in voting on it did not disclose his interest in violation of section 199 of The Municipal Act; " the refusal of the disqualification order was based on a procedural point involving the interpretation of section 159 of The Municipal Act, " which the Court held in effect proscribes any amendment of notices of motion to add new separate grounds for the granting of the disqualification order. There were two Quebec cases concerning proceedings to challenge the qualification of councillors. Paulin v. Poirer" dealt with the distinction between the two remedies available in Quebec under the Code of Civil Proced- ure W and the Municipal Code" for contesting the election of a mayor, alderman or councillor for absence of qualification. Interestingly, regarding the facts of the case, the judicial proceedings involved had taken so long that the term of office of the individual whose right to have run for office was being contested had expired and the statutory ground of alleged disqualification

75&Re Grys & Stratton was reversed on appeal, [1973] 1 Ont. 682. The Court of Appeal restored the force of the fiat enabling the disqualification proceeding which the Ontario High Court had quashed. The court felt that there was a sufficiently substantial issue involved in the disqualification proceeding to warrant the continuance of the proceeding. In obiter, the court indicated that it disagreed with Mr. Justice Houlden on the question of whether an alderman who commits a disqualifying act can subsequently purge his misconduct. 76 [19721 1 Ont. 200 (High Ct.). 77 ONT. REv. STAT. c. 284 (1970). "Id. raSee also: Hurelon v. Jones, note 71. "Supra note 76 at 201. 61 [19721 2 Ont. 12 (High Ct.). n Supra note 77. U Id. 3[19701 Sup. Ct. 576. See also: 31 R. du B. 21 (1971), for a note on this case. m See: article 35, 838, 343 and 847. "article 314. Ottawa Law Review [Vol. 6:485 had been repealed. The other case was Rosseau v. C6te " which involved the Municipal Bribery and Corruptions Act ' 8 and articles 84 and 237 of the Municipal Code. Somerville v. Hughes " is a somewhat mystifying case concerning the interpretation to be given to section 36(1)(q)(i) of The Municipal Act" of Ontario which excludes from disqualification to be elected as a councillor a person who is a party to a teacher's contract. In Re Ridout "'the court dealt with the procedure followed by a council in compliance with the procedure statutorily prescribed in Ontario to fill a vacancy on council; the court in effect held that the procedure was prescribed in imperative directory language and that the council had complied with it substantially. Along the way the court considered the difference between a meeting of council and a caucus of council. Lastly, City of Edmonton v. Hawrelak " boiled down to its bare facts was a case of a man wrongly using his mayoral position to his own private business benefit and thus becoming liable as an agent to account to his princi- pal, the municipality, for profits made by him. Mr. Justice Kirby in his judgment surveys the law governing such conduct by members of council with fair comprehensiveness, beginning with the leading case of City of Toronto v. Bowes. "

C. Land Planning and Use Control, Generally The rurally staged rock festival, considered a blight on the landscape by many, came before the courts in two cases. One Township was successful in obtaining an interim injunction restraining the holding of a rock festival, prior to its action for a permanent injunction coming on for hearing, on the ground that the festival would constitute a public nuisance. " The judicial proceedings followed the staging of festivals in the township on three earlier occasions, the results of which were "a considerable factor" in the awarding of the interim injunction, as was the English judgment A.G. v. P.Y.A. Quar- ries Ltd. " In Township of Madoc v. Quinlan " an application for an interim injunction to restrain the holding of a rock festival was decided on the basis of whether the holding of a rock festival would violate two particular by-laws. With regard to the first by-law, the court found that, while it had probably been passed by the council with at least the tacit approval of the vast majority of the ratepayers in the township to prevent the holding of rock festivals within the municipality, it was in effect, a prohibitory by-law passed pursuant to

87 [1971] C.S. 101. " QUEBEC REV. STAT. c. 173, (1964). "1[1972] 2 Ont. 848 (High Ct.). " Supra note 77. "t [1971] 2 Ont. 257 (High Ct.). "[19721 24 D.L.R.3d 321 (Alta. S.C.). 9"4 Gr. 489 (1854), aff'd 6 Gr. 1. aff'd 11 Moo. 463, 14 E.R. 770. "A.G. Ontario v. Orange Productions Ltd. [19711 3 Ont. 585 (High Ct.). [19571 1 All E.R. 894 (C.A.). [1971] 3 Ont. 540 (High Ct.). Summer 1974] Municipal Law enabling legislation which only empowered by-laws to regulate and license. The by-law was also questionable because it contained a requirement which the municipality had no power to impose, and through it the municipality attempted an invalid sub-delegation. The other by-law was a zoning by-law, the applicability of which the Court questioned on the grounds that it was not in effect at the time the action for the injunction had be commenced, and that prior to its receiving the necessary municipal board approval, the de- fendants may well have done enough to establish the festival use of the premises involved as a non-conforming use. Although the correctness of this last ground is dubious, the court was also not inclined to grant the interim injunction because it did not feel that the township would sustain irreparable harm from holding of the rock festival for which adequate compensation in damages could not be obtained. A passing reference was made to the trial judgment in Texaco v. Oak Bay " in the second survey, ",wherein an amending zoning by-law was quashed on the ground, inter alia, that the by-law had been passed in bad faith. On appeal, " the by-law was upheld, the court found that in the context of the situation surrounding the passage of the by-law, no bad faith had been established by the attacker. As well, on another of the grounds raised, the court held that, with regard to the statutory stipulation that in passing zoning by-laws certain criteria were to be considered by the council, it was neither necessary for the council to audibly go over the criteria, nor for the minutes to show that the criteria had been considered. L'Association Des ProprietariesDes Jardins Tache Inc. v. Les Enterpris- es Dasken Inc. l"was at least spectacular in result for many of us watched on television the rare sight of the actual destruction of the partially completed apartment building in question in pursuance of the five to two split decision of the Supreme Court which required the building site involved "to be returned to its original condition" Much of the majority and minority decisions, delivered by Mr. Justice Pigeon and Mr. Justice Abbott respectively, concerned themselves with the status of the two plaintiffs, one a non-profit company with no share capital which was basically a homeowners' association, and the other, an owner of property in the same zone. The object of the action was to obtain a revocation of certain building permits issued by the municipality, which it was alleged were void in that they enabled the construction of a multiple family dwelling in an area zoned for single family dwellings only. Canada's first proposed single-family dwelling condominium was involved in the decision in Re Macval Enterprises Ltd. and Township of Nepean, 1"1 wherein a development company for economic reasons relating to the installation of municipal services, turned to that form of development for a parcel of residential land which it had acquired. However, notwith-

w 68 W.W.R. (n.s) 373 (B.C. Sup. Ct. 1969). "4 OTrAWA L. REv. 244 at 254, note 80 (1970). "20 D.L.R.3d 551 (B.C.) (1971). 10026 D.L.R.3d 70 (Sup. Ct.) (1971). 101[1972] 2 Ont. 458 (High CL). Ottawa Law Review [Vol. 6:485 standing the fact that the layout designed by the planner for the development company was commendable for its originality, its high standard of landscaping, and its harmonization with the character of the neighbourhood, the court upheld the refusal to issue a building permit on the grounds that the proposed development violated both the spirit and letter of the applicable zoning by-law; the court also pointed out that the fact that what was proposed involved condominium ownership was irrelevant insofar as compliance with the zoning by-law was concerned. The court expressly took a liberal approach in ap- plying the by-law, 02 after making reference to an articulation by Mr. Chief Justice McRuer in Re Bridgman and City of Toronto1 .3 of the opposing strict construction approach. In Cloverlawn Investments Ltd. v. Corporationof District of Burnaby, 104 a case which on its facts fell squarely within the decision'in Township of Scarborough v. Bondi, 10 as opposed to Re Dillabough and Township of Esquimalt, 10' the notice of intention to pass the by-law had been published in two appropriate newspapers but not specifically given to the owners of the four lots affected. After passing the rezoning by-law the council of the municipality, at the request of one of the lot owners who had not seen the notice and only learned of the by-law subsequently, entertained submissions from the owner and a prospective lessee, and then reconsidered and reconfirm- ed the by-law. The court held that even if there had been a failure of natural justice in connection with the original passage of the by-law, assuming that the passage of the by-law constituted the exercise of a quasi-judicial power, the failure was cured by the opportunity given on the reconsideration of the by-law. I wonder whether the learned judge considered, and if he did not, whether he would have decided this point differently if he had been referred to, the case of R. v. Newmarket Assessment Committee, Ex parte Allen New- port Ltd. 10" It is probably trite to re-iterate that where an application for a minor variance is appropriate, it is necessary that this avenue of relief be attempted before a mandamus application is made following the refusal of a building permit; however, this is the essence of Re Bruce and City of Toronto. 18 It should be equally obvious that a municipality, which allows a right of appeal from a reversal of its refusal to issue a building permit to lapse, will not be able, generally, to make use of the remedy of certiorari to attack the reversal. 100

102See also Re Bruce [19711 3 Ont. 62 (C.A.). 103 [1951] Ont. 489, at 796 (High Ct.). 104[19721 1 W.W.R. 628 (B.C. Sup. Ct.). 101[1959] Sup. Ct. 444. 10662 D.L.R.2d 653 (B.C. Sup. Ct. 1967). 107 [1945] 2 All E.R. 371 (K.B.). 100 [1971] 3 Ont. 62 (C.A.). See also Re Cornenki and Township of Tecumseth [1971] 3 Ont. 159 (High Ct.) which concerned the appropriateness of mandamus as a remedy for irate homebuyers who were exercised about a municipality's failure to en- force rigidly its building by-law against building contractors. 109 Re Chad Investments Ltd. 20 D.L.R.3d 627 (Alta. C.A. 1971). Summer 1974] Municipal Law

The function of the Ontario Municipal Board in deciding whether or not to approve a proposed zoning by-law is to consider whether the by-law embod- ies "good and desirable planning." The board does not exceed "its jurisdiction by embarking on an inquiry as to whether or not the designated . . . use of the subject property was consistent with sound planning, rather than [restricting] . . . itself to the issue that the proposed development project is in accordance with the designation and policies of the official plan." , In Re Forfar and Township of East Gwillimbury ...the court refused to apply Re Carterand Congram ""to sanction the respondents admitted attempt on the basis of the Carter decision to evade the requirements of section 26 of The Planning Act ...of Ontario, as it was prior to 1970, because the court held that Re Redmond and Rothschild ", had "effectively overruled" the

Carter decision. 1 Re Knudsen and Hollingsworth Investment Ltd. "' very simply provides that section 26(4) of the former Planning Act 1' of Ontario was a positive statutory restriction on section 26(2) (a), thus requiring the vendor to obtain the consent of the committee of adjustment in a situation where the vendor was selling part of a lot which was contiguous to another lot which he owned and the land was within a plan of subdivision. Re Ormerod and Township of Ancaster "' was almost an extremely interesting case for it concerned the meaning of section 38(1) of The Planning Act ""of Ontario which enables municipalities to pass by-laws "authorizing the refusal of a permit for any building or structure that if constructed would be contrary to the provisions of any by-law of the municipality." Ancaster had enacted such a by-law and refused a building permit on the ground that the necessary approval to build a septic tank in connection with the proposed house had not been obtained pursuant to the statutory by-law of the Public Health Act. "' The court did not really have to come to grips with the words "any by-law of the municipality" in section 38(1) because the court was of the opinion that the refusal was proper since a sewerage system was not an extraneous matter to the building permit application for it was an integral part of the proposed house. Three cases involved the power of municipalities pursuant to section 35 of the Planning Act ...of Ontario to prescribe lot area per se, quite apart from

" Sault Ste. Marie, [1972] 2 Ont. 1.

1 [1971] 3 Ont. 337 (C.A.). m [1970] 1 Ont. 800 (High CL); see also the last survey 5 OTrAWA L Ray. 196, at 204, note 51, (1971). 1 ONT. Rav. STAT. C. 296, 1960, - now ONT. REv. STAT. c. 344 § 20 (1970). 11 [1971] 1 Ont. 436 (C.A.). luSee also. Re Anzil Construction Ltd. and Township of West Gwillimburg, [1971] 2 Ont. 713 (High CL) and Re Schwindt and Willis. 116 [1971] 3 Ont. 580 (Dist. CL). I" Supra note 113. 1 [1971] 3 Ont. 729 (High CL). 11 Supra: note 113. 10 ONT. REv. STAT. c. 377, 1970. " Supra: note 113. 500 Ottawa Law Review [Vol. 6,485 minimum frontage and depth, and location and spacing of buildings. In Re City of Toronto1 . the Court of Appeal unanimously held in the negative. 2" And finally, the consent of the committee of adjustment in Ontario required by section 29(2) of The Planning Act.4 does not apply to a quit claim deed being registered to acknowledge a subdivision of land which took place prior to the enactment of the requirement that consent be obtained in connection with such a subdivision. 2 D. Definitions of Planning Terms When is a "processing plant" to be considered a "pipe-line"? The an- ' swer, insofar as The Planning Act 18 of Alberta is concerned, is never. "2 In Re Deep River2 " a restricted area by-law which permitted the land in question to be used for single family dwellings, semi-detached dwellings and churches was held to be violated by a church which operated a youth hostel in its base- ment, "however laudable in terms of social action" the operation might be. The question for the Court of Appeal in Oshawa Wholesale v. Canadia Niagara Falls Ltd. "z'was whether a stereotype shopping centre involved a use separate and distinct from its component parts. Making reference to one American decision and an earlier decision of the Ontario Court of Appeal, the court had no difficulty in holding that components of a shopping centre lose their essential character as independent retail stores and supermarkets, although individually the components might be permitted uses; together as a shopping centre they form a prohibited use if shopping centres per se are not expressly permitted as well, especially in this case for the by-law in question did allow a type of shopping centre designated as a "local shopping centre", not to be confused with the hitherto more familiar regional or sub-regional shopping centre. 1 0 What constitutes a "minor variation"? It all depends upon the circumstances. In Re Perry and Taggart ", it was pointed out that "a variation of nineteen feet in the frontage [required] ... might be minor in some instances and major in other instances." In Re Herman and Kalbfleisch " the court considered the meaning of the term "abutting" 1' and in the process, the decision in Re Catkey Construc-

122[1972] 1 Ont. 345 (C.A.). 1See also: Regina v. Township of King, Ex parte O'Connor [1971] 1' Ont. 441 (High Ct.) and Re Anzil Construction Ltd. and Township of West Gwillimburg [19711 2 Ont. 4713 (High Ct.). " Supra: note 121. 1 25 Re Turner and Turner Funeral Home Ltd. [1972] 2 Ont. 851 (Co. Ct.). 2 8 ALTA. REv. STAT. c. 276 1970. 127 Sun Oil Co. v. Foothills, [1971] 5 W.W.R. 275 (Alta. Sup. Ct.). 12 27 D.L.R.3d 414 (Ont. Co. Ct. 1972). 121[1972] 1 Ont. 481 (1971). 1 0 3 See however, Bayshore Shopping Centre Ltd. v. Nepean, 25 D.L.R.3d 443 (1972). 13 [1971] 3 Ont. 666 (High CL). 12 [1972] 2 Ont. 720 (Co. Ct). 22 3As used in s. 29(2)(b) of The Planning Act, ONT. Rnv. STAT., c. 349 (1970). Summer 1974] Municipal Law

tion (Toronto) Ltd. 13 and a number of dictionary definitions. The court concluded that to abut, two parcels of land "must have a common border or a common boundary or must overlap for some distance"; thus two parcels located in checkerboard fashion to each other, meeting at a point with no dimensions and being indefinitely small, do not abut. In a zoning by-law dealing with a commercial-residential buffer zone, the City of Toronto in defining the types of permitted uses included "Residen- tial: an hotel.. ."; the by-law also stated that certain yard requirements "shall apply mutatis mutandis to every residential building." It was held that in the light of the way the by-law was drafted hotels had to conform to the prescribed yard requirements for residential buildings. "o Regina v. Timoranszki " concerned a prosecution for the violation of a zoning by-law which, paraphrased, read as follows: (1) No person shall ... use... any building... except in conformity with the provisions of this by-law ... (12)(b) . . no person shall... erect any... building... having a greater gross floor area... than as follows ... The charge was that the accused "did use a building . . . except in conformity with" the prescribed floor area regulation. The dismissal of the charge was confirmed by the Ontario Court of Appeal on the basis that subsection (12) (b) does not prescribe, define or even mention any uses. The court went no further in its brief judgment to deal with the meaning of the term "use.22

E. Expropriation I have not bothered to make reference to expropriation decisions concerning municipal corporations where there was no significant or remarkable issue from the point of view of municipal law. If ever there was a case on its facts that would test the efficacy of the pre-acquisition hearing which has been added recently to the expropriation procedure in several Canadian jurisdictions, Walters v. Essex County Board of Education ..was that case. The object of such a hearing as enunciated by the Expropriations Act of Ontario 13' is to "inquire into whether the taking of the lands... is fair, sound and reasonably necessary in the achievement of the objectives of the expropriating authority." In this case a school board wanted to expropriate some farm land; the inquiry officer, appointed to conduct the hearing, reported to the approving authority, which in this instance by virtue of the Expropriations Act was the expropriating authority the school

1 [1971] 1 Ont. 205 (1970) which was noted in the last survey, 5 OTrAw A I REv. 196, at 207. "13 Re Pal and Toronto, [1972] 2 Ont. 292 (High CL 1971). See also Re George Herczeg Ltd. and Toronto, [1972] 2 Ont. 561 (High CL 1971). 13 [1972] 2 Ont. 110 (1971). 137[1971] 3 Ont. 346 (High Ct.). 13 3 ONT. REv. STAT. c. 154, § 7(5) (1970). Ottawa Law Review " [Vol. 6:485 board, "that this expropriation is, in my opinion, both indefensible and is not fair or sound and should not be approved". The school board dealt with the inquiry officer's report firstly in committee of the whole, then privately as it was allowed to do; after each member had had the report and had been in- formed of the reasons why the officer's report should not be followed in a report prepared by the board chairman and the solicitor; the board at a public meeting briefly dealt with the inquiry officer's report, rejected it, and formally approved the expropriation. The court found nothing wrong with the way in which the board, as approving authority, had fulfilled its obligation to "consider" the report of the inquiry officer, and, that in fact it had considered his report, albeit at a private meeting. It seems to me that given all the facts in this case, when one considers the outcome at the board of education level, a fairly accurate indication can be gleaned of the illusive nature of the pre-acquisition hearing and approval procedure. Prior to the introduction of this.step in the expropriation procedure, it was clear that given an intra vires exercise of an expropriation power, there was only one question in an expropriation situation, namely, the amount of compensation. The introduction of the pre-acquisition hearing and approval procedure probably falsely raised hopes that there might now possibly be a second real question in an expropriation situation, namely, whether the expropriating authority could take the lands in question. How- ever, when the close'relationship between the approving authorities and expropriating authorities is examined (indeed in the case of municipal and school expropriations the two authorities are the same entity wearing different hats), it is obvious that it will be only in the exceedingly exceptional case that an expropriation will not be approved; and the public cannot be blamed for thinking that there is little or no objectivity involved in the approval procedure. The pre-acquisition and approval procedure as it is currently constituted appears to me to be little more than a political device to give affected persons an opportunity "to blow off steam" in a harmless way. I appreciate that the procedure is designed ostensibly to ensure that the approving authority has before it all the relevant information before a final decision is made. Gray v. Oshawa1 concerned an expropriation where a municipality took more lands than it needed and subsequently disposed of the excess land to its advantage. Statutorily in Ontario a municipality can take more lands than it needs, if it "appears to the council that it can acquire a larger quantity of land from any ...owner at a more reasonable price and on terms more ad- vantageous;" 140 however, the trial court in this case found that the municipality, had not satisfied the condition precedent to the extra expropriation power, for it had taken the lands "after very limited, negotiations." As well, in the course of its judgment the court dealt briefly with the distinction between the motion to quash and the action for a declaration

139[1971] 3 Ont. 112 (High Ct.). 140Municipal Act, ONr. REv. STAT. c. 284, § 336(3) (1970). Summer 1974] Minicipal Law procedures to question the validity of a by-law, and with the subject of mis- recitals in by-laws; after quoting from judgments which indicate that misre- citals are of no consequence, the learned judge seemed to say that nonethe- less in this case the incomplete nature of the recitals was material. On appeal 1 1 the trial judgment was reversed and the action for a declaration of nullity concerning the expropriation by-law was dismissed. The Court of Appeal came to its conclusion on the bases that bearing in mind the wording of the extra expropriation power the municipality itself had in- vestigated and discussed the situation sufficiently (and the legislation did not require bilateral talks with the land owner involved) to enable it to conclude that the larger expropriation appeared to it to be justified, that the misrecital was irrelevant and that the trial judge ought to have given effect to the de- fences of delay and approbation on the part of the plaintiff, which had been pleaded. A municipality, pursuant to a power to "acquire property by expropriation" in order to "develop [the] property... for use as a residential, commercial, or industrial area, or any combination of such uses", 1 passed a by-law expropriating certain lands "for use as a residential, commercial or industrial area, or any combination thereof." Premising its decision with the statement "that a statutory provision for expropriation of private property should be construed and interpreted strictly", the Court of Appeal of British Columbia

in Re Saratoga Holdings Ltd. and Surrey 1 quashed the by-law on the ground that the expropriation power enabled expropriations for the purpose of 'land development" as opposed to "land use." Two other cases deserve a passing reference. Shamrock Parking Ltd. v. National Capital Commission 1 may be indicative, bearing in mind the wording of the relevant legislation there, of the use to which a municipal entity can put expropriated land in the period between the actual expropriation and the development of the land for purpose for which it was expropriated; here the commission used the land as a parking lot. Halloway v. Corner Brook " is exemplary of the strict observance of procedural detail to which courts hold expropriating entities.

F. Negligence, Nuisance, Breach of Contract An order allowing a motion for an extension of time for commencing " an action for damages under the name Allan v. City of Saskatoon ' was noted briefly in the last survey. '" My description of the decision of the learned judge who heard the motion was not quite accurate. The issue was whether piling snow in snow clearing so as to obstruct view constituted an

141 [1972] 2 Ont. 856. 142Municipal Act, B.C. REV. STAT. c. 255, § 465 (1960). 4 18 D.L.R.3d 371 (B.C. 1971). 14 [1971] 3 Ont. 564. 1422 N. & P.E.I. 514 (Nfld. Sup. Ct. 1972). "411 D.L.R.3d 367 (Sask. Q.B. 1970). 147 5 OrwA L. REv. 196, at 201. Ottawa Law Review [Vol. 6:485 act of misfeasance or non-feasance in regard to the municipality's statutory duty to keep streets in a reasonable state of repair or an act of nuisance thus making applicable a certain limitation period, or whether it could constitute an act of negligence thus making applicable another limitation period which could be judicially extended. On the motion at first instance, Mr. Justice Disbery, who heard it, held that the case might fall within misfeasance or non- feasance in connection with the duty to repair or within nuisance, but not necessarily, for it might arguably involve negligence or the creation of a dangerous trap; therefore he allowed the requested time extension. On appeal this decision was upheld by a split decision. 1' ' There were several noteworthy cases involving actions arising out of accidents allegedly occasioned by the non-repair or mis-repair of highways and in some of them the issue of compliance with the usually required notice provision was in issue. 149 Hanson v. Saint John HorticulturalAss'n "' was an occupier's liability case, involving injury to users of a toboggan slide; the city of Saint John was made a defendant to the action on the basis that it was liable either as a joint occupier of the land or as a result of the alleged negligent way in which the city had improved the slide for the Association. The park in which the slide was located was owned by the association, a statutory corporation. There was a close relationship between the city and the association in that "for many years the City... made annual grants to the Association to be used to provide recreational facilities in the park for citizens of the City." "From time to time the City also assisted the Association by providing services of City work crews .and personnel for maintenance and development of the Park, the cost of which was ordinarily charged by the City against the annual grants." 151 The city was held not to be liable either as an occupier or on the basis of the work which it had done on the slide. Armstrong v. City of Regina " was an unremarkable action in negligence and nuisance for damage occasioned by a break in a city watermain. But the case may be of interest for the comments contained in the judgment concerning what the court sees as a "recent trend in judicial thought" to impose liability on "public enterprise" where its activity or non-activity results in damage or injury to individuals. T -On this same general point a useful com-

1- [1971] 3 W.W.R. 448 (Sask.). 149Dumont v. Campbellton, 3 N.B.2d 603 (Co. Ct. 1970); Cameron v. New Glas- gow, 1 N.S.2d 651 (Sup. Ct. 1970); Broten v. Cartier, [1971] 3 W.W.R. 592 (Man. Q.B.)- wherein Mr. Justice Wilson gave a useful although not exhaustive summary of, and posed some interesting questions with regard to, the law involved in §§ 228-229 of the Municipal Act, MAN. REV. STAT. c. M225 (1970); Athabasca v. Prufer, [19711 5 W.W.R. 663 (Alta.) concerning who can relieve against the notice required by § 385(2) of the Municipal Government Act, ALTA. REV. STAT. c. 246 (1970); Phaneuf v. Sher- brooke, [1971] C.S. 67 (1970); Galbiati v. Regina, [1972] 2 W.W.R. 40 (Sask. Q.B. 1971). 1503 N.B.2d 46 (Q.B. 1970), rev'd 3 N.B.2d 477 1971). 151 id. at 49. 152 [1972] 1 W.W.R. 685 (Sask. Q.B. 1971). 3 " See also: Quebec v. Picard, [1972] Sup. Ct. 227 which involved the application of arts. 1053-1055 of the QUEBEC CIVIL CODE. Summer 1974] Municipal Law parison can be made between the case of Neabel v. Ingersoll "' and the recent English decision in Dutton v. Bognor Regis Building Co. " Four cases remain to be noted briefly before turning to the contract cases. The trial judgment in Roberts v. City of Portage La Prairie' " was noted in an earlier survey. 117 It has now run its course through the Supreme Court of Canada with the trial judgment against the municipality being upheld throughout ...Cit6 de Granby v. Delaney ...was an action against a municipality in connection with a fall suffered by the plaintiff on a sidewalk coated with frozen rain. Freedman v. C6te St. Luc and Maltais v. City of Camp- bellton "' were fairly straightforward negligence actions against municipalities as a result of accidents involving municipal vehicles driven by municipal employees; the latter case had to do with the negligent driving of a fire truck through an intersection on the way to a fire. The City of Ottawa became embroiled in a dispute in connection with the tenders which it called for its garbage collection. The plaintiff, in the resulting action Sanitary Refuse Collectors Inc. v. Ottawa, '' submitted a tender, which being under seal constituted an irrevocable offer, together with a required monetary guarantee. Upon learning that it had tendered pursuant to what it considered to be material misrepresentations made to it by Ottawa, the plaintiff wrote to the city withdrawing-actually in law attempting to re- voke-its offer. The plaintiff was seeking the return of its '"deposit"; the city defended that the "deposit" was forfeit and counterclaimed for damages resulting in its having to settle for the next lowest tender. Key to the counterclaim were the facts that the city in the Form of Tender had not bound itself to accept the lowest tender and the fact that the city had accepted the withdrawal of the plaintiff's tender. The court disposed of the case treating it as a straightforward contractual problem; in the process reference was made to a quotation in I. Rogers The Law of Canadian Municipal Corporations on municipal tendering in general and the court disparaged the stance taken by the City of Ottawa. Re- garding the presentation of facts the court said: "I must point out that I found the testimony of the plaintiff's witnesses honest and forthright. The defendant's witnesses appeared somewhat evasive and overly semantic. Accordingly, where there is a conflict of credibility I am inclined to believe the plaintiff's witnesses."163 And, concerning the city's counterclaim and its entitlement to damages

1S [19621 2 Ont. 343 (High Ct) to which a reference was made in the first survey 3 OTTAWA L. REv. 258, at 277 & n. 147. - [1972] 1 All E.R. 462 (C.A. 1971). 15 2 D.LR.3d 373 (Man. Q.B. 1968). 157 4 OTrAWA L REv. 244, at 251. ' 17 D.L.R.3d 722 (1971). 1591971 C.A. 380 (1969). 160 [1972] Sup. Ct. 216. 1614 N.B.2d 788 (1972). 162 [1972] 1 Ont. 296 (High Ct. 1971). 163 Id. at 304. Ottawa Law Review [Vol. 6:485 for breach of. contract, even though it had not actually entered into a contractual relationship with the plaintiff, the Court said: It was not enough for the City to say that it was prepared to accept Sani- tary's bid. The only way to prove this is to accept and do all things necessary to execute a formal contract.

The City cannot argue that to force it to formally accept Sanitary's bid in such a situation would be reducing it to a meaningless pantomime. The City has chosen in its drafting to afford itself the greatest possible protection from inadvertently creating an enforceable obligation. Such drafting cuts two ways ... The rights and obligations of parties cannot turn upon the "Ifs" and suppositions and "would haves" as the City claims. If it wishes damages it must enter a contract. A theoretical breach of a theoretical contract which by its own terms might never have come into existence at all cannot be the basis of a $60,000 recovery .... I" C.P.R. v. City of Calgary 1. concerned an agreement negotiated by the City of Calgary with the railway relating to the construction of an enlarged drainage culvert under the railway's railroad grade in connection with a residential development. Part of the agreement included an indemnity clause wherein the city agreed to bear all costs and risks of construction, maintenance and repair. Following a washout of the culvert which the city failed to repair, the C.P.R. through a derailment suffered a large amount of damage and sued the city. One of the issues in the case was whether the city was bound by the agreement, although it had been signed on behalf of the city by the mayor and one of the city commissioners, for it had never been approved or authorized by the city council. This contention failed because, the council had at least authorized the cost of construction, representatives of the city regularly inspected the culvert, the city had annually paid the rental fee required by the agreement, and the execution of the agreement was an executive and administrative aspect of the authorized construction quite within the authority of the city's board of commissioners according to the board's by-law. In addition, it could be said that the agreement had been accepted and acted upon for many years by both parties so that it was rather late in the day to raise the validity of a part of the agreement on such a basis. Another contention raised by the city was that the agreement was contrary to section 438 of The City Act'" because it also made the city liable for damage flowing from negligence of the railway. The court's decision here was that that part of the indemnity agreement relating to negligence of the railway was severable (and not relevant in this case anyway); as well the court pointed out that section 438 deals with liability of the city arising out of its own negligence as distinct from contractual liability under an idemnity contract. 194d. at 310-311. 1- [1971] 4 W.W.R. 241 (Alta.). '"ALTA. REV. STAT. c. 42 (1955). Summer 1974] Municipal Law

Two other cases decided during the period under review involved a damage action against a municipality for the alleged illegal discharge of an employee 167 and a request for an order for specific performance in a fact situation concerning two agreements to sell the same land; '" the second agreement was initiated by the hestitancy of the original purchasers to close the deal in the face of the conditions which the Committee of Adjustment was indicating it would impose in giving its consent pursuant to section 26 of The Planning Act 1.9 of Ontario. Silver's Garage v. Bridgewater ' which was noted in the last survey ... went to the Supreme Court of Canada and with Mr. Justice Laskin dissenting, the appeal was dismissed.

G. Miscellaneous Cases The lesson, very briefly, of Regina v. City of Montreal ' is that when it is the Crown which is suing a municipality, the apparently applicable limitation periods and notice requirements may not be relevant; at least in Montreal, sub-sections 1089-90 of the city's charter do not apply to the Crown in a suit launched against the city. The prosecution of a Mr. Swan, an employee in a barber shop, hung on whether, when he alone was working late cutting hair, he was an "occupier" of the shop thus contravening a closing by-law which provided that "the owner, occupier, proprietor or manager of a barber shop who fails to close... contrary to ... this by-law is guilty of an offence." It was held that he was not an occupier within the meaning of the by-law. 1 Regina v. Phelps""' was another prosecution, this time of a physician who lived and had his office in one municipality but used the facilities of the nearest hospital in a neighbouring municipality. The issue was whether in failing to take out a business licence in the neighbouring municipality he had contravened one of its by-laws which required licences to be taken out by any professional who "regularly and generally carries on business in the municipality." This case is interesting not only for the interpretation of the phrase "regularly and generally" but also for the difference of opinion between the members of the British Columbia Court of Appeal as to whether what was at issue was a matter of law, or a matter of mixed fact and law. In yet another prosecution, Regina v. Les-Marks Investments Ltd. "' under a by-law requiring fire equipment to be installed and maintained, the real question for the courts was the proper application of the strict liability involved.

1 6 7Lewsey v. Surrey, [1972] 1 W.W.R. 611 (B.C. Sup. Ct. 1971). 1166 Orsi v. Morning, [1971] 3 Ont. 185. 9 ONT. REv. STAT. c. 296 (1960), now ONT. REv. STAT. c. 344 (1970). 170 17 D.L.R.3d 1 (1970). 1715 OTTWA L. RPv. 196, at 208. 1 27 D.L.R.3d 349 (Fed. Ct. 1972). 1724 N.B.2d 230 (Co. Ct. 1971). 174 7 Can. Crim. Cas.2d 351 (B.C. 1972). 112[1972] 2 Ont. 706. Ottawa Law Review [Vol. 6:485

Bertha Rand, the notorious "cat woman" of Winnipeg was back before the courts in connection with her keeping cats in violation of a municipal by-law. Previously she had been both unsuccessful and successful in attacking the current by-law and an earlier version of it, respectively, on the ground that by-laws were discriminatory. This time she was appealing an injunction restraining her from having more than three cats on her premises. "' The current by-law in its two basic sections provides that: 1. No person shall . . . keep . . . on his premises more than three ... animals of the same species ... 2. No person shall permit or suffer any premises to be used for the harbor- ing of animals of any species ... creating .. a nuisance to the residents of other properties in the vicinity. Mrs. Rand's contention was that the municipality was entitled to an injunction only if they proved that she was keeping more than three cats and in so doing creating a nuisance for her neighbours. The court disagreed holding that the by-law created two separate and distinct offences and that in this case the injunction was being sought only in connection with section 1. The court also gave short shrift to another argument which possibly deserved a fuller treatment, namely that the by-law was discriminatory now due to the recent total amalgamation of the various area municipalities in the Metropolitan Winnipeg area, in that the by-law only applied in that part of the new City of Winnipeg which formerly comprised the municipality of St. James-Assiniboia. The court's view was simply that "the transitional sections of the City of Winnipeg Act ...[those that provided that all by-laws of the former area municipalities were to remain in full force and effect], afford a complete answer to this submission." However, quite arguably, it seems to me, all that those transitional sections do is to keep in force for the time being all by-laws complete with any defects inherent in them. Surely the transitional sections could not be viewed as curative in effect? In Re Regina City Policemen's Association and Board of Police Com- missioners of Regina "' it was first of all settled that the application in question, made pursuant to section 11 of the Arbitration Act 17 with the object of obtaining an order that, inter alia, the arbitration award involved be enforced as a judgment or order of the Court of Queen's Bench of Saskatchewan, was not proper for the arbitration award did not definitely settle the rights and liabilities of the parties and section 132(10) of the Urban Municipality Act, "I states specifically how a valid arbitration award is to be implemented. The court then at the request of both parties proceeded to deal with whether the award was valid and binding upon both the Board of Police Commissioners and the City of Regina, as if that matter had come to the court by way of appeal.

176St. James-Assiniboia v. Rand, 26 D.L.R.3d 169 (Man. 1972). 17 Man. Stat. c. 105, 1970. 17824 D.L.R.3d 41 (Sask. 1971). 179SAsK. REV. STAT. C. 106 (1965). 180Sask. Stat. c. 78, 1970. Summer 1974] Municipal Law

On the facts, after collective bargaining between the board and the policemen's association resulted in a proposed agreement which would necessarily result in an over-expenditure of the city's estimates for 1970, and the city would not approve the agreement, the association duly required the matter to be referred to a board of arbitration. After the board of arbitration delivered its decision the Board of Police Commssioners refused to implement the arbitration award unless the city would make available the necessary funds or the validity of the award was determined by a court. Regarding the validity of the award, the court did not agree that the bargaining of the Board of Police Commissioners appointed for the year 1970 could not carry effect beyond the year for which it was appointed thus nulli- fying the arbitration proceedings in this case which carried into 1971, for the board was a continuing body with power to act to bind successor boards. As well, the court held that the statutory restriction on a Board of Police Com- ' missioners, contained in section 112 of the Urban Municipality Act, "1 pro- scribing such a board from authorizing the expenditure of any funds which would result in an over-expenditure of the municipality's estimates, does not govern a Board following resort to arbitration for it is then section 132(10) of the Urban Municipality Act " which governs and which clearly provides that the Board of Police Commissioners is bound to implement the arbitration decision; in turn, the municipality is also bound to implement an arbitration decision for "all things done by the Board of Police Commissioners within its statutory powers are binding upon the city [and] a fortiori, any imperative duty imposed upon the Board ...is a duty imposed upon the city." " Re Canadian Union of Public Employees and City of Kamloops ' will be of interest at least to municipalities in British Columbia contemplating joining with other neighbouring municipalities in order to create through an employers' organization a unified front with respect to all their labour-manage- ment activities. Two cases concerned the selling of an unused or abandoned road allowance. In Re Ronville Lodge Ltd. and Franklin 114 the question was what is the effect upon a dedicated, but not used, highway if the road allowance is sold and the municipality wishes subsequently to open up the road? Lavoie v. Canton de Barford "1had to do with the proper procedure for a municipality to follow under the Municipal Code in disposing of an abandoned highway. And finally these brief descriptions of three other cases. What was en- compassed by the boundary of a Town described as "running... along the sinuosities of the ... shoreline" was the subject of Chaulk v. South River.

11Id. 18 Id. '824 D.L.R.3d 492 (B.C. 1972). ,8 [1972] 3 Ont. 323. ' [1971 C.. 742. l2 N. & P.E.I. I (Nfld. Sup. Ct. 19710. Ottawa Law Review [Vol. 6:485

Tadoussac v. Brisson ""had to do with the proper procedure to be followed .under the Municipal Code in order to have a secretary-treasurer declared "defalcataire." The scope of-the Ontario Municipal Board's power to review an expressway project which required, at least initially, Board approval due to the financing involved was considered in Re Brantford and Bray. In closing this fourth survey I want to make reference to the English Court of Appeal decision of Pickin v. British Railways Board1 9 which came to my attention recently through an English periodical. "" The case involved an attack on the validity of a piece of private legislation on the ground that it had been promoted through Parliament improperly as an unopposed Bill without notice being given to persons affected by it. I wonder if this case might have any application to the situation where municipalities quietly seek validating statutes from provincial legislatures in connection with defective by-laws.

187 [1971] C.S. 155 (1970). s [1972] 2 Ont. 525. 'a [1972] 3 All E.R. 923 (C.A.). 190 122 New L.J. 882.