Reference Re Lands Protection Act (P.E.I.), (1987) 64 Nfld. & P.E.I.R. 249 (PEISC)

• Judge: Carruthers, C.J.P.E.I., McQuaid and Mitchell, JJ.
• Case Date: July 24, 1987
• Jurisdiction: Prince Edward Island
• Citations: (1987), 64 Nfld. & P.E.I.R. 249 (PEISC)

Ref. Re Lands Protection (1987), 64 Nfld. & P.E.I.R. 249 (PEISC);

    197 A.P.R. 249

MLB headnote and full text

In the matter of the Lands Protection Act, R.S.P.E.I. 1974, c. L-7.1

and

In the matter of the Judicature Act, R.S.P.E.I. 1974, c. J-3

and

In the matter of a reference by the Lieutenant Governor In Council as contained in order number EC562/86

and

Irving Pulp and Paper Limited (intervenor)

(no. GDC-6847)

Indexed As: Reference Re Lands Protection Act (P.E.I.)

Prince Edward Island Supreme Court

In Banco

Carruthers, C.J.P.E.I., McQuaid and Mitchell, JJ.

July 24, 1987.

Summary:

The Lieutenant Governor in Council of Prince Edward Island referred the following questions for consideration by the Supreme Court in Banco:

1. Does the interest of a lessee of land fall within the definition of "land holding" under the Prince Edward Island Lands Protection Act?

2. Does the interest of a lessor fall within the definition of "land holding" under the Prince Edward Island Lands Protection Act?

3. Do the provisions of the Prince Edward Island Lands Protection Act limiting the area of land owned or used by a person in the province infringe the rights to liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice guaranteed by s. 7 of the Canadian Charter of Rights and Freedoms?

4. Are the provisions of the Prince Edward Island Lands Protection Act limiting the area of land owned or used by a person in the province inconsistent with the right to pursue the gaining of livelihood conferred by s. 6(2)(b) of the Canadian Charter of Rights and Freedoms?

The Prince Edward Island Supreme Court, in Banco, answered question one in the affirmative and questions two, three and four in the negative.

Civil Rights - Topic 8546

Canadian Charter of Rights and Freedoms - Interpretation - Life, liberty and security of the person - Whether property rights included - In a separate concurring judgment, a judge of the Prince Edward Island Court of Appeal stated that the concept of "security of the person" must at least involve adequate food and shelter for physical survival and in that sense must necessarily include the right to acquire the property needed to achieve those ends - See paragraphs 61 to 71.

Civil Rights - Topic 8546

Canadian Charter of Rights and Freedoms - Interpretation - Life, liberty and security of the person - Whether property rights included - The Prince Edward Island Court of Appeal held that the words "life, liberty and security of the person" refer to the bodily inviolability of a natural person and therefore do not inherently include the right to own or possess land - Also, property rights have been left out of s. 7 of the Charter protecting life, liberty and security of the person - Property rights are therefore not included in s. 7 of the Charter - See paragraphs 38 to 49.

Civil Rights - Topic 8555

Canadian Charter of Rights and Freedoms - Interpretation - Mobility rights - Gaining of livelihood (s. 6(2)(b)) - The Prince Edward Island Court of Appeal held that s. 6(2) of the Charter touches only (a) the right to move freely from one province to another; (b) the right to take up residence in any province; and (c) the right to work in any province whether resident there or not - Nowhere does that section touch upon property rights and neither can the acquisition of property be said to be an essential and necessary concomitant to the right to work - See paragraphs 50 to 60.

Real Property - Topic 290

Restrictions on ownership or use - Statutory - "Land holding" defined - The Prince Edward Island Court of Appeal held that the expression "land holding" defined in the Lands Protection Act means only an interest conferring the right to actual possession, occupation or use of land in the province - Therefore the interest of the lessee falls within the definition of "land holding", because a lessee has actual possession or use of land - However, the lessor's interest is not covered because he does not have actual possession or use of land - See paragraphs 9 to 37.

Statutes - Topic 2407

Interpretation of words and phrases - By context - The Prince Edward Island Court of Appeal, interpreting the word "use" (of land) as employed in the Lands Protection Act, held that although the word generally includes present, future, physical and nonphysical (e.g. let out for profit) use of land, it only means present physical use when interpreted in the context of the entire statute - See paragraphs 24 to 31.

Statutes - Topic 2457

Interpretation of words and phrases - Interpretation and definition clauses - Use of word "means" - The Prince Edward Island Court of Appeal held that the use of the word "means" in a definition carries with it a restrictive and exclusionary meaning - Only that which is specifically enumerated in the words following is to be included within the parameters of the definition - See paragraph 13.

Cases Noticed:

Empire Financiers Ltd. v. Nance, [1920] 51 D.L.R. 231, refd to. [para. 17].

R. v. Gore (1980), 38 N.S.R.(2d) 134; 69 A.P.R. 134, refd to. [para. 17].

Ryde Municipal Council v. Macquarie University, 139 C.L.R. 633, refd to. [para. 24].

National Trust Co. v. Barker, [1931] 3 D.L.R. 583 (Ont. S.C.), refd to. [para. 26].

Re Duncan (1932), 41 O.W.N. 175, refd to. [para. 27].

Re Anderson, [1920] 1 Ch. 175, refd to. [para. 28].

Southam Inc. v. Hunter, [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291; 9 C.R.R. 355; 41 C.R.(3d) 97; [1984] 6 W.W.R. 577; 33 Alta. L.R.(2d) 193; 27 B.L.R. 297; 84 D.T.C. 6467; 2 C.P.R.(3d) 1; 11 D.L.R.(4th) 641; 14 C.C.C.(3d) 97, refd to. [paras. 40, 66].

Wilson and Others v. Medical Services Commission of British Columbia and A.G. British Columbia, [1987] 3 W.W.R. 48, consd. [para. 47].

Skapinker v. Law Society of Upper Canada, [1984] 1 S.C.R. 357; 53 N.R. 169; 3 O.A.C. 321, appld. [paras. 54, 55, 58].

Reference Re s. 94(2) of the Motor Carrier Act (B.C.), [1985] 2 S.C.R. 486; 63 N.R. 266; [1986] 1 W.W.R. 481; 24 D.L.R.(4th) 536, refd to. [para. 66].

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335; 50 C.R.(3d) 1; 24 C.C.C.(3d) 321; 26 D.L.R.(4th) 200, refd to. [para. 67].

R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; 18 D.L.R.(4th) 321; 58 N.R. 81; 60 A.R. 161; 18 C.C.C.(3d) 385; [1985] 3 W.W.R. 481, refd to. [para. 67].

Statutes Noticed:

Judicature Act, R.S.P.E.I. 1974, c. J-3, sect. 38(1) [para. 1].

Lands Protection Act, R.S.P.E.I. 1974, c. L-7.1, generally [paras. 1, 2, 3, 10, 23, 31, 32, 37, 38, 41, 62, 71]; sect. 2, sect. 3, sect. 4, sect. 5, sect. 6 [para. 3]; sect. 7 [paras. 2, 33]; sect. 8 [para. 4]; sect. 9 [paras. 22, 30].

Canadian Charter of Rights and Freedoms, sect. 1(2) [para. 69]; sect. 6 [paras. 50, 51, 52, 56, 57, 58]; sect. 7 [paras. 39, 43-48, 61-68, 70, 71]; sect. 8 [para. 66].

Canadian Bill of Rights, R.S.C. 1970, Appendix III, sect. 1(a) [paras. 43, 44, 63].

United States Constitution, generally [para. 63].

Authors and Works Noticed:

Stroud's Judicial Dictionary [paras. 16-17].

Shorter Oxford English Dictionary [para. 16].

Anger and Honsberger, Real Property, (2nd Ed.), vol. 1, p. 225 [para. 35].

Counsel:

Charles P. Thompson and Roger B. Langille, for the Lieutenant Governor in Council;

John A. McQuaid, Q.C., for the intervenor, Irving Pulp & Paper Limited.

This case was heard on May 13, 1987, before Carruthers, C.J.P.E.I., McQuaid and Mitchell, JJ., of the Prince Edward Island Supreme Court, in Banco.

The judgment of the court was delivered on July 24, 1987, and the following opinions were filed:

McQuaid, J. (Carruthers, C.J.P.E.I., concurring) - see paragraphs 1 to 60;

Mitchell, J. - see paragraphs 61 to 71.