McMichael v. Ontario, (1997) 105 O.A.C. 161 (CA)

• Judge: Finlayson, Carthy and Doherty, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: November 20, 1997
• Jurisdiction: Ontario
• Citations: (1997), 105 O.A.C. 161 (CA)

McMichael v. Ont. (1997), 105 O.A.C. 161 (CA)

MLB headnote and full text

Temp. Cite: [1997] O.A.C. TBEd. DE.019

Robert McMichael and Signe McMichael (applicants/respondents) v. Her Majesty The Queen in Right of Ontario (respondent/appellant) and The McMichael Canadian Collection (intervener)

(C26215)

Indexed As: McMichael v. Ontario

Ontario Court of Appeal

Finlayson, Carthy and Doherty, JJ.A.

November 20, 1997.

Summary:

In 1965, the McMichaels agreed to donate their art collection to the Province of Ontario. The agreement provided for an advisory committee which included the McMichaels. In 1972, the collection was assigned to a Crown corporation and the McMichael Canadian Art Collection Act was enacted. The advisory committee was replaced by a board of trustees. The Mc­Michaels applied for a declaration that the 1965 agreement was in full force and effect, notwithstanding the 1972 Act and amend­ments thereto. The McMichaels also sought declarations respecting breaches of the agree­ment. The Crown claimed that the 1972 legis­lation as amended superseded the a­greement.

The Ontario Court (General Division), in a decision reported 19 O.T.C. 324, declared the agreement to be in full force and effect and ordered the board to abide by the terms of the agreement and, in particular, the acquisition policy. The Crown appealed, arguing that the subsequent legislation su­perseded the 1965 agreement and that the application of the McMichaels should there­fore be dismissed. The McMichaels cross-appealed, arguing that the provisions of the agreement relating to the constitution of the advisory committee and its powers were not superseded by the legislation and that they were entitled to a declaration that those provisions were in full force and effect and that the Crown was in breach of the provi­sions.

The Ontario Court of Appeal, Finlayson, J.A., dissenting, allowed the appeal, set aside the decision of the General Division and dismissed the McMichaels' application. The court dismissed the cross-appeal, holding that the McMichaels had contracted out of any right of control over the collection.

Crown - Topic 1004

Contracts with Crown - General principles - Statutory confirmation of contracts - In 1965, the McMichaels agreed to donate their art collection to the Province of Ontario - The agreement provided for an advisory committee including the Mc­Michaels - In 1972, pursuant to the Mc­Michael Canadian Art Collection Act, the advisory committee disappeared, the col­lection was assigned to a Crown agency and an acquisition committee was cre­ated which reduced the McMichaels' influ­ence over the collection - The Mc­Michaels applied for declarations that the 1972 legislation (and amendments thereto) did not supersede the 1965 agreement and that the Crown had breached the 1965 agree­ment - The Ontario Court of Appeal dis­missed the McMichaels' application hold­ing that in the late 1970's the McMichaels contracted out of any right of control over the collection - See para­graphs 58 to 97.

Statutes - Topic 8746

Private or special statutes - Nature of - Contractual v. statutory obligations - [See Crown - Topic 1004 ].

Cases Noticed:

Gustavson Drilling (1964) Ltd. v. Minister of National Revenue, [1977] 1 S.C.R. 271; 7 N.R. 401, refd to. [paras. 21, 86].

Anti-Inflation Act, Re, [1976] 2 S.C.R. 373; 9 N.R. 541, refd to. [para. 44].

Interception of Private Communications Reference, [1984] 2 S.C.R. 697; 56 N.R. 43; 58 A.R. 39, refd to. [para. 44].

Wiretap Reference - see Interception of Private Communications Reference.

Tschritter v. Sohn, Harrison and Bistritz (1989), 94 A.R. 304; 57 D.L.R.(4th) 579 (C.A.), refd to. [para. 44].

Tschritter v. Alberta (Children's Guardian for Alberta) - see Tschritter v. Sohn, Harrison and Bistritz.

Lor-Wes Contracting Ltd. v. Minister of National Revenue (1985), 60 N.R. 321; 85 D.T.C. 53l0 (Fed. C.A.), refd to. [para. 44].

Stein Estate v. Ship Kathy K, [1976] 2 S.C.R. 802; 6 N.R. 359; 62 D.L.R.(3d) 1, refd to. [para. 46].

Ontario (Attorney General) v. Bear Island Foundation et al. (1989), 32 O.A.C. 66; 68 O.R.(2d) 394 (C.A.), refd to. [para. 46].

Spooner Oils Ltd. v. Turner Valley Gas Conservation Board, [1933] S.C.R. 629, refd to. [para. 87].

Allen v. Thorn Electric Industries Ltd., [1968] 1 Q.B. 487 (C.A.), refd to. [para. 87].

Manitoba Government Employees Associ­ation v. Manitoba, [1978] 1 S.C.R. 1123; 17 N.R. 506, refd to. [para. 88].

R. v. Leong Ba Chai, [1954] S.C.R. 10, refd to. [para. 112].

Statutes Noticed:

McMichael Canadian Art Collection Act, 1972, sect. 4(1), sect. 4(3) [para. 85]; sect. 7 [paras. 26, 85, 101]; sect. 8 [para. 27]; sect. 18 [para. 85].

McMichael Canadian Art Collection Act, 1982, sect. 7 [para. 102].

McMichael Canadian Art Collec­tion Act, S.O. 1989, c. 44, sect. 8 [paras. 40, 103].

Authors and Works Noticed:

Bice, Megan, Curatorial Rationale for the Collection and Program of the McMich­ael Canadian Art Collection, generally [para. 106].

Côté, Pierre-André, The Interpretation of Legislation in Canada (2nd Ed. 1991), p. 364 [para. 44].

New Shorter Oxford English Dictionary [para. 95].

Counsel:

Leah Price, for the appellant;

W. Ian C. Binnie, Q.C., and Harry Under­wood, for the respondent;

Paul J. Pape, for the intervener.

This appeal was heard on September 29 and 30, 1997, before Finlayson, Carthy and Doherty, JJ.A., of the Ontario Court of Appeal. The decision of the court was released on No­vember 20, 1997, and the following opinions were filed:

Finlayson, J.A., dissenting - see para­graphs 1 to 57;

Carthy, J.A. (Doherty, J.A., concurring) - see paragraphs 58 to 113.