Costello and Dickhoff v. Calgary (City), (1983) 41 A.R. 318 (SCC)

• Judge: Dickson, McIntyre, Chouinard, Lamer and Wilson, JJ.
• Court: Supreme Court (Canada)
• Case Date: January 25, 1983
• Jurisdiction: Canada (Federal)
• Citations: (1983), 41 A.R. 318 (SCC);[1983] 1 SCR 12;1983 CanLII 135 (SCC)

Costello v. Calgary (1983), 41 A.R. 318 (SCC)

MLB headnote and full text

Costello and Dickhoff v. City of Calgary

Indexed As: Costello and Dickhoff v. Calgary (City)

Supreme Court of Canada

Dickson, McIntyre, Chouinard, Lamer and Wilson, JJ.

January 25, 1983.

Summary:

The City of Calgary expropriated property owned by two registered owners as joint tenants. The owners brought an action for a declaration that the expropriating bylaw was void, because notice of the intention to expropriate was not properly served upon them. One was a resident of Alberta and, while it was not proved that the notice was served upon her, she appeared at the city council meeting at which the bylaw was presented and made representations. The other was a resident of Ontario and notice was mailed to her 17 days before the meeting instead of the required 3 weeks. The Alberta Court of Queen's Bench dismissed the action. The Alberta Court of Appeal without recorded reasons dismissed the owners' appeal. The owners appealed.

The Supreme Court of Canada allowed the appeal and held that the expropriating bylaw was void, because of the failure to strictly comply with the notice requirements respecting the Ontario owner.

Expropriation - Topic 4108

Taking of title - Conditions precedent - Notice to land owners of intention to expropriate - The property of two joint owners was expropriated - One was an Alberta resident and received proper notice; the other was a resident of Ontario and the notice to her was mailed 17 days instead of 3 weeks before the city council meeting on the expropriating bylaw - The Supreme Court of Canada held that the expropriating bylaw was void, because of the failure to strictly comply with the notice requirements of s. 24(5) of the Expropriation Procedure Act, R.S.A. 1970, c. 130, respecting the Ontario owner.

Statutes - Topic 505

Interpretation - General principles - Imperfect compliance with statute - The Supreme Court of Canada discussed the issue of whether the courts should insist on strict adherence to statutory requirements and held that strict compliance should be required in the exercise of extraordinary powers, such as taxation, expropriation or other interference with private rights - See paragraphs 11 to 12.

Statutes - Topic 5128

Operation and effect - Obligatory, mandatory, imperative and absolute acts - Failure to comply with mandatory act - Effect of - The Supreme Court of Canada held that the failure to strictly comply with the notice requirements in an expropriation under the Expropriation Procedure Act, R.S.A. 1970, c. 130, s. 24, rendered the expropriating bylaw void and uncureable.

Statutes - Topic 5130

Operation and effect - Obligatory, mandatory, imperative and absolute acts - Mandatory power - Whether obligatory or directory only - The Supreme Court of Canada held that the notice requirements for an expropriation under the Expropriation Procedure Act, R.S.A. 1970, c. 130, s. 24, were mandatory and obligatory, not directory only, rendering an expropriation bylaw void for non-compliance.

Cases Noticed:

Re Huson and South Norwich (1892), 19 O.L.R. 343, affd. 21 S.C.R. 669, appld. [para. 11].

Re Ostrom and The Corporation of the Township of Sidney (1888), 15 O.A.R. 372, appld. [para. 12].

Re McCrae and Village of Brussels (1904), 8 O.L.R. 156, appld. [para. 13].

Scarborough v. Bondi, [1959] S.C.R. 444, appld. [para. 14].

Wiswell et al. v. The Metropolitan Corporation of Greater Winnipeg, [1965] S.C.R. 512, appld. [para. 15].

City of Victoria, The v. Mackay (1918), 56 S.C.R. 524, appld. [para. 15].

McDougal et al. v. Harwich Township, [1945] 2 D.L.R. 442, appld. [para. 15].

Hopper v. Municipal District of Foothills No. 31 and Lancaster, [1976] 6 W.W.R. 610; 1 A.R. 129, appld. [para. 15].

Trustees of St. Peter's Evangelical Lutheran Church, Ottawa, The v. The Council of the City of Ottawa and the Corporation of the City of Ottawa (1982), 45 N.R. 271, appld. [para. 15].

Statutes Noticed:

Expropriation Procedure Act, R.S.A. 1970, c. 130, sect. 22, sect. 23, sect. 24, sect. 25 [para. 2]; sect. 26 [paras. 2, 16].

Municipal Government Act, R.S.A. 1970, c. 246, sect. 397 [para. 16].

Authors and Works Noticed:

Rogers, The Law of Canadian Municipal Corporations (2nd Ed.), pp. 432, 433 [para. 11].

Counsel:

B.A. Crane, Q.C., A. Bloomenthal and J. Hanbury, for the appellants;

Adel A. Abougoush and Aaron Rynd, for the respondent.

This case was heard on May 12, 1982, at Ottawa, Ontario, before DICKSON, McINTYRE, CHOUINARD, LAMER and WILSON, JJ., of the Supreme Court of Canada.

On January 25, 1983, McINTYRE, J., delivered the following judgment for the Supreme Court of Canada: