Alberta v. Very, Very, Harris, Westman, Westman, Tetrault and Lakeland Investment Syndicate, (1983) 47 A.R. 340 (QB)

• Judge: Egbert, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: July 29, 1983
• Citations: (1983), 47 A.R. 340 (QB)

Alta. v. Very (1983), 47 A.R. 340 (QB)

MLB headnote and full text

Alberta, Province of v. Very, Very, Harris, Westman, Westman, Tetrault and Lakeland Investment Syndicate

(8201-21589)

Indexed As: Alberta v. Very, Very, Harris, Westman, Westman, Tetrault and Lakeland Investment Syndicate

Alberta Court of Queen's Bench

Judicial District of Calgary

Egbert, J.

July 29, 1983.

Summary:

Landowners owned 54.64 acres of land. About 16 acres of the land was covered by a slough. The slough resulted solely from surface run-off and had no inlet or outlet. Its level decreased drastically from spring to fall and at times dried up. The Province of Alberta claimed title to the bed of the slough on the ground that it was a "lake or other body of water" within the meaning of s. 3(1) of the Public Lands Act, R.S.A. 1980, c. P-30. The Province applied for a determination of title to the slough bottom.

The Alberta Court of Queen's Bench held that the slough was not a lake or other body of water within the meaning of s. 3(1) and that the Crown accordingly did not own title to its bed.

Statutes - Topic 1569

Interpretation - Implied meaning - Express language necessary - Infringement of public or private or common law rights - The Public Lands Act, R.S.A. 1980, c. P-30, s. 3(1), reserved title to the beds and shores of watercourses and lakes in the Crown - The Alberta Court of Queen's Bench held that s. 3 (1) should be strictly construed, because it encroached upon private rights - See paragraphs 54, 61.

Statutes - Topic 1621

Interpretation - Extrinsic aids - Other statutes - General - The Alberta Court of Queen's Bench held that a court may look at the legislative history of a statute only where the statute is doubtful or ambiguous - See paragraphs 45 to 47 - The Court held that s. 33 of the Interpretation Act, R.S.A. 1980, c. I-7, did not prohibit the examination of prior statutes in statute construction - See paragraph 44.

Statutes - Topic 1624

Interpretation - Extrinsic aids - Other statutes - Prior statutes respecting same subject matter - The Alberta Court of Queen's Bench in construing s. 3(1) of the Public Lands Act, R.S.A. 1980, c. P-30, s. 3(1), which reserved title to the beds and shores of watercourses and lakes in the Crown, examined prior versions of the provision - See paragraphs 31 to 33, 43 to 53.

Statutes - Topic 2582

Interpretation - Words and phrases - Ejusdem generis rule - Cases where rule inapplicable - The Alberta Court of Queen's Bench held that, where general words follow specific ones, the ejusdem generis rule is inapplicable if the specific words are not restricted to the same class - See paragraphs 54 to 66.

Statutes - Topic 2584

Interpretation - Words and phrases - Ejusdem generis rule - When rule applies - General words following particular words - The Public Lands Act, R.S.A. 1980, c. P-30, s. 3(1), reserved title to the Crown in the beds and shores of "all rivers, streams, watercourses, lakes and other bodies of water" - The Alberta Court of Queen's Bench held that the ejusdem generis rule was applicable to restrict the general words "other bodies of water" to the same class as the particular words "rivers, streams, watercourses, lakes" - The Court held that a slough was not an "other body of water", because it was not within the same class as the particular words - The Court explained the application of the ejusdem generis rule - See paragraphs 54 to 66.

Statutes - Topic 6142

Operation and effect - Amendments - Inference from - The Alberta Court of Queen's Bench held that it may be inferred from the amendment of a statute that the alteration was made deliberately - The Public Lands Act, R.S.A. 1980, c. P-30, s. 3(1) changed an expression from "any lake, river, stream or other body of water" to "other lake, river, stream or other body of water" - The Court held that the substitution of the word "other" for "any" was of no material significance - See paragraphs 45 to 46, 48 to 53.

Waters - Topic 109

Lake - Defined - The Alberta Court of Queen's Bench discussed the intrinsic nature of a lake, distinguishing a lake from a slough, which is essentially a stagnant and swampy collection of surface water, which tends to dry up as the summer season progresses - See paragraphs 35 to 41.

Waters - Topic 111

Slough - Defined - The Alberta Court of Queen's Bench discussed the nature of a slough and distinguished it from a lake - The Court held that a slough is essentially a stagnant and swampy collection of surface water, which tends to dry up as the summer season progresses - See paragraphs 35 to 66.

Waters - Topic 114

Other body of water - Defined - The Public Lands Act, R.S.A. 1980, c. P-30, s. 3(1) reserved title to Crown of the beds and shores of "all rivers, streams, watercourses, lakes and other bodies of water" - The Alberta Court of Queen's Bench held that the ejusdem generis rule was applicable to the interpretation of "other bodies of water" and held that a slough was not an "other body of water" of the same class as "rivers, streams, watercourses and lakes" - See paragraphs 42 to 66.

Cases Noticed:

Milk River v. McCombs & Madge, [1978] 4 W.W.R. 614, appld. [para. 31].

Block et al. v. Franzen et al., 79 N.W.R.(2d) 446, consd. [para. 37].

Libby, McNeil & Libby v. Roberts, 110 So.(2d) 82 (Fla. App.), consd. [para. 37].

Flewelling v. Johnston (1920-21), 16 A.L.R. 409, consd. [para. 38].

Bathurst Paper Ltd. v. Minister of Municipal Affairs of the Province of New Brunswick (1971), 4 N.B.R.(2d) 96; 22 D.L.R.(3d) 115, appld. [para. 44].

D.R. Fraser & Co. Ltd. v. Minister of National Revenue, [1948] 4 D.L.R. 776, appld. [para. 45].

Canadian Pacific Railway v. R. (1906), 38 S.C.R. 137, appld. [para. 45].

Attorney General for Canada v. Hallet & Carey Ltd., [1952] A.C. 427, appld. [para. 54].

Thames, The and Mersey Marine Insurance Company, Limited v. Hamilton, Fraser & Co., 12 A.C. 484, appld. [para. 57].

R. v. Minor (1920), 53 N.S.R. 551, appld. [para. 58].

Heatherton Co-Operative Co. Ltd. v. Grant, [1930] 1 D.L.R. 975, appld. [para. 59].

Would v. Herrington, [1932] 2 W.W.R. 385, appld. [para. 59].

Statutes Noticed:

Interpretation Act, R.S.A. 1980, c. I-7, sect. 33 [para. 44].

Public Lands Act, R.S.A. 1980, c. P-30, sect. 3(1) [para. 29].

Authors and Works Noticed:

Black's Law Dictionary [para. 36].

Driedger, E., The Construction of Statutes, pp. 92, 95 [para. 56]; 104, 133 [para. 46].

Farnham's Waters and Water Rights, pp. 1560-1561 [para. 37].

Maxwell on Interpretation of Statutes (12th Ed.), pp. 64, 66 [para. 46]; 251 [para. 54]; 297 [para. 56].

Restatement of the Law of Torts, para. 842, p. 324 [para. 37].

Shorter Oxford English Dictionary [para. 36].

Counsel:

A.P. Hnatiuk, for the applicant;

R.J. Wilkins, for the respondents.

This case was heard at Calgary, Alberta, before Egbert, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following judgment on July 29, 1983: