Hopper v. Municipal District of Foothills No. 31 and Lancaster, (1976) 1 A.R. 129 (CA)

• Judge: McDermid, Clement and Haddad, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: October 21, 1976
• Citations: (1976), 1 A.R. 129 (CA)

Hopper v. Foothills (1976), 1 A.R. 129 (CA)

MLB headnote and full text

Hopper v. Municipal District of Foothills No. 31 and Lancaster

Indexed As: Hopper v. Municipal District of Foothills No. 31 and Lancaster

Alberta Supreme Court

Appellate Division

McDermid, Clement and Haddad, JJ.A.

October 21, 1976.

Summary:

This case arose out of the expropriation by a municipality of a 4.5 acre strip of land for highway purposes. As required by s. 24 of the Expropriation Procedure Act, the municipality notified the landowner of its intention to expropriate by registered mail. When the notice was mailed by the municipality it knew that the landowner was in Hong Kong and that the notice was unlikely to reach the landowner in time for the landowner to respond. The landowner commenced an action for a declaration that the expropriation bylaw was void. The trial court allowed the landowner's action and declared the bylaw void.

On appeal to the Alberta Court of Appeal the appeal was dismissed and the judgment of the trial court was affirmed. The Alberta Court of Appeal stated that in the circumstances the municipality failed to notify the landowner of the municipality's intention to expropriate. The Alberta Court of Appeal interpreted the Expropriation Procedure Act and stated that notice to the landowner was a condition precedent to the exercise of the statutory power to expropriate - see paragraph 25. The Alberta Court of Appeal referred to the deemed service provisions of s. 51 of the Expropriation Procedure Act and stated that "deemed" as employed in s. 51 created a rebuttable presumption of service - see paragraphs 10, 44 and 45.

McDermid, J.A., dissenting, in the Alberta Court of Appeal, would have allowed the appeal and would have dismissed the landowner's action for a declaration. McDermid, J.A., stated that the expropriation bylaw was voidable and not void and that s. 26 of the Expropriation Procedure Act constituted a bar to the landowner's action - see paragraphs 48 to 70.

Civil Rights - Topic 1502

Property - General principles - Deprivation or expropriation of property - The Alberta Court of Appeal stated that a man is not to be deprived of his property without notice and an opportunity to be heard - See paragraph 39.

Expropriation - Topic 4108

Taking of title - Conditions precedent - Notice to landowner of intention to expropriate - Alberta Expropriation Procedure Act - A municipality expropriated by bylaw a 4.25 acre strip of land for highway purposes - As required by s. 24 of the Expropriations Procedure Act, the municipality by registered mail sent to the landowner a notice of intention to expropriate - The municipality knew that the land owner was in Hong Kong and that the notice was unlikely to reach the landowner in time for the landowner to respond - The Alberta Court of Appeal declared the expropriation bylaw in valid because of the failure of the municipality to properly notify the landowner of the expropriation - The Alberta Court of Appeal interpreted the Expropriation Procedure Act and stated that notice to the landowner was a condition precedent to the exercise of the statutory power to expropriate - See paragraph 25.

Municipal Law - Topic 3451

Bylaws - Validation or approval of bylaws - Curative provisions, effect of - S. 26 of the Expropriation Procedure Act provided that upon registration of a bylaw "all actions and claims in respect of the expropriation" are barred - The Alberta Court of Appeal held that such a curative provision was not a bar to an action for a declaration that a bylaw was void because of the failure of a municipality to notify a landowner of the municipality's intention to expropriate - See paragraphs 26 to 30 - The Alberta Court of Appeal stated that a void bylaw cannot be validated by a curative provision - See paragraphs 31 to 46.

Statutes - Topic 1402

Interpretation - Construction where meaning is not plain - General principles - Intention of legislature - The Alberta Court of Appeal stated that where the meaning of a statute is not plain the sole duty of a court is to seek the true legislative intention of the statute - See paragraphs 18, 42 and 55.

Statutes - Topic 1569

Interpretation - Implied meaning where meaning is not plain - Infringement of private rights - The Alberta Court of Appeal stated that a statute which encroaches on the rights of citizens must be construed with strictness - See paragraph 17.

Statutes - Topic 4843

Operation - Enabling acts - Validity of enabling acts, conditions precedent - Effect of a failure to follow conditions precedent - The Alberta Court of Appeal stated where a municipality exercises a statutory power of expropriation that all conditions precedent must be strictly followed - See paragraph 23.

Words and Phrases

Deemed - The Alberta Court of Appeal discussed the meaning of the word "deemed" as found in s. 51(b) of the Alberta Expropriation Procedure Act - See paragraphs 10, 44 and 45.

Cases Noticed:

Gray v. Kerslake, [1958] S.C.R. 3, folld. [para. 10].

Hickey v. Stalker, 53 O.L.R. 414; [1924] 1 D.L.R. 440, folld. [para. 10].

R. v. Freeman (1890), 22 N.S.R. 506, folld. [para. 10].

R. v. Westminster Unions Assessment Committee, [1917] 1 K.B. 382; 86 L.J.K.B. 698; 116 L.T. 605, dist. [para. 20].

McDougal v. Harwich Tp., [1945] O.R. 291; 2 D.L.R. 442, folld. [para. 22].

Louis Riopelle v. City of Montreal, [1911] S.C.R. 579, folld. [para. 23].

Wiswell et al. v. Metropolitan Corporation of Greater Winnipeg, [1965] S.C.R. 512; (1965), 51 W.W.R. 526, folld. [paras. 24, 59].

Elloway v. British Columbia Electric Railway Company Limited (1956), 19 W.W.R. 408; [1956] 4 D.L.R.(2d) 734, folld. [para. 30].

Caldow v. Pixell, [1877] L.R. 2 C.P.D. 562, folld. [para. 42].

Montreal Street Railway Company v. Normandin, [1917] A.C. 170, folld. [para. 42].

Re Huson and South Norwick (1892), 19 O.A.R. 343, dist. [para. 45].

Attorney General of Canada v. Hallet & Carey Ld., [1952] A.C. 427, folld. [para. 55].

R. v. Dubois, [1935] S.C.R. 378, folld. [para. 55].

Gesman v. City of Regina, 10 W.L.R. 136, refd to. [para. 69].

Brown v. Rural Municipality of Caledonia, 27 D.L.R.(3d) 597, refd to. [para. 69].

Springfield Farm Developments Ltd. v. R.M. of North Kildonan, 53 D.L.R.(2d) 95, refd to. [para. 69].

Saskatchewan Wheat Pool and Bessam Enterprises Ltd. v. City of Regina, [1971] 4 W.W.R. 658, refd to. [para. 69].

Statutes Noticed:

Expropriation Procedure Act, R.S.A. 1970, c. 130, sect. 24(2) [para. 12]; sect. 25(1)(b) [para. 13]; sect. 26 [para. 26]; sect. 44(1) [para. 14]; sect. 51 [para. 8].

Interpretation Act, R.S.A. 1970, c. 189, sect. 18(4) [para. 43].

Authors and Works Noticed:

Rogers, The Law of Municipal Corporations (2nd Ed.), vol. 1, pp. 432 [para. 29]; 461 [para. 63]; 1031 [para. 58].

Oxford English Dictionary (2nd Ed.) [para. 57].

Wade, Unlawful Administrative Action: Void or Voidable, (1967) L.Q.R. 49; (1968) L.Q.R. 93 [para. 59].

Counsel:

R. Kambeitz, for the appellant;

M.V. McDill, for the plaintiff.

Judgment was delivered by the Alberta Court of Appeal at Calgary, Alberta on October 21, 1976 and the following opinions were filed:

HADDAD, J.A. - see paragraphs 1 to 32.

CLEMENT, J.A. - see paragraphs 33 to 47.

McDERMID, J.A. - dissenting, see paragraphs 48 to 70.