St. Peter's Evangelical Lutheran Church v. Ottawa, [1982] 2 S.C.R. 616 (1982)

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St. Peter's Evangelical Lutheran Church v. Ottawa, [1982] 2 S.C.R. 616 (1982)

Supreme Court of Canada

St. Peter's Evangelical Lutheran Church v. Ottawa, [1982] 2 S.C.R. 616

Date: 1982-11-23

The Trustees of St. Peter's Evangelical Lutheran Church, Ottawa (Plaintiffs) Appellants;

and

The Council of the Corporation of the City of Ottawa and the Corporation of the City of Ottawa (Defendants) Respondents.

File No.: 16445.

1982: April 1; 1982: November 23.

Present: Dickson, Estey, Mclntyre, Lamer and Wilson JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Municipal law-Heritage building-Application to demolish-Statute required municipal consent-Deemed consent in absence of notice of decision within ninety-days of application date-Appellants not given formal notice but knew of decision to refuse application-Partial demolition effected on assumption of deemed consent-Whether or not appellants attained right to demolish by operation of statute-The Ontario Heritage Act, 1974 (Ont.), c. 122, now R.S.O. 1980, c. 337, ss. 34, 67-Interpretation Act, R.S.O. 1980, c. 219, s. 10.

This appeal arose from an application for judicial review of a by-law designating a house purchased by appellant Trustees to be a heritage property. The Ontario Heritage Act, which required the City's consent for the demolition of a heritage building, provided that that consent would be deemed given if the City did not either consent to or refuse the application within ninety days of the application to demolish. The appellants received no formal notice of the City's decision within that period as provided in s. 34(2) of the Act and proceeded to partially demolish the building on the assumption that consent was deemed to be given. The City obtained an injunction restraining further demolition. The lower courts found that the Trustees knew of the Council's decision-made in the form of a by-law passed within the ninety-day period-to deny the application to demolish and to expropriate the property. The issue was whether or not the appellants had attained the right to demolish their building pursuant to the statute.

Held (Estey J. dissenting): The appeal should be allowed.

Per Dickson, McIntyre, Lamer and Wilson JJ.: The notice provisions, even given a liberal interpretation as required by the Interpretation Act, cannot be justifiably set aside. Considered in the context of the whole Act, these procedural requirements were of substance and not of mere form for they were the landowner's only protection in the face of the City's otherwise indefeasible rights. The set time limits and the notice provisions determined the period during which the landowner's rights were suspended and fixed the date on which those rights could be reasserted. Equating knowledge on appellants' part with notice given by th...

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