Some Leading Cases

• Author: Howard Epstein
• Pages: 86-132

86

CHA PTER 2

SOME LEADING CASES

All of the cases discussed in this chapter are decisions of the Supreme

Court of Canada, save for the 1926 decision of the Judicial Committee

of the Privy Council in the Ontario Toronto Roman Catholic Separate

Schools v Toronto (City) case;1 at the time such further appeals were

possible. Thus the decisions are authoritative and t he recent ones are

frequently cited. In some instances, the cases have been super seded

by statute or subsequent decisions, but they remain part of the fabric

of LUP law. Together they offer a good introduction to some recurring

themes and problems in LUP law. Most of the issues that were litigated

in these cases are further considered in subsequent chapters. Notes

below each case identif y the main points emerging from the case or

indicate cont roversies.

Not all of the Supreme Court of Canada decisions on LUP matters

are summari zed here. Even important cases such as Old St Boniface

Residents Associat ion Inc v Winnipeg (City)2 (the meaning of bias in loc al

government), Nanaimo (City) v Rascal Trucking Ltd3 (the standard of

judicial review for municipal decisions), and British Columbia (Attorney

General) v Lafarge Canada Inc4 (division of powers under the Constitu-

tion Act) are dealt with in other chapters. The reason for the placement

is one of relative focus on land use. The cases placed elsewhere tend

1 [1924] SCR 368, rev’d [1926] AC 81 (JCPC).

2 [1990] 3 SCR 1170.

3 2000 SCC 13.

4 2007 SCC 23.

Some Leading C ases 87

to be those where the legal aspect s are more related to constitutional

law, administrative law, or some other topic, and although the con-

sequences for questions of how to process land-use matters are quite

important, they are not so di rectly related to the main lines of legal

thought about LU P law.

Several important themes are illustrated by the ca ses in this chap-

ter, including:

• how to interpret statutes that gr ant powers to municipalities;

• whether compensation is or ought to be payable for restrictions on

land use;

• the environmental reg ulatory powers of the three levels of government;

• remedies in instances of by-law breaches, including the standing of

citizens to seek remed ies; and

• judicial review of municipal deal ings with land-use matter s, includ-

ing “reasonableness/discrimination” issues a nd the duty of fairness.

The cases follow chronological order.

MacIlreith v Hart Estate5

In MacIlreith v Hart Estate, the mayor of Halif ax had attended a national

meeting of mayors and councillors held by the predecess or organiza-

tion of what is now the Federation of Canadian Municipalities (FCM).

He was reimbursed exp enses by the municipality. The lawsuit, brought

by a taxpayer, sought recovery of the amount paid to the mayor on

the basis th at the incorporating statute made no provision for such

payments. The taxpayer was successful. The Court held that the muni-

cipality was a “tr ustee” of taxes paid, and thus an ind ividual taxpayer

should have standing. In addition, the Court applied Dillon’s Rule to

reading the Municipal Act. A well- establi shed principle of i nterpreta-

tion of municipal statutes, Dillon’s Rule states that municipalities, as is

the case with corporations, possess only those powers expressly con-

ferred by statute, those powers neces sarily or fairly implied by the ex-

press powers conferred by statute, and t hose powers essential to and

not merely convenient for effecting the purposes of the municipality.

Notes

1) Two points f‌low from this case. One is the precedent for recognition

of standing for a ratepayer to challenge an expenditure. The other is

its inf‌luence in the style of drafting of statutes granting powers to lo-

cal governments. That is, there is a tendency to list powers in detail,

5 (1908), 39 SCR 657 [MacIlreith].

LAND-USE PLANNING88

although this has been abandoned in some provinces, and the Su-

preme Court of Canada has recognized as valid the wide ambit of

listed general categories of powers intended by those legislatures to

be exercised by local governments.6

2) To this day, Nova Scotia’s Municipal Government Act includes in its

list of authorized spendi ng powers that it is allowable to pay “the

reasonable expenses incurred by the mayor or warden or a council-

lor for attendance at meetings and conferences . . . .”7

3) Dillon’s Rule, while not entirely seen as a “rule,” has not been aban-

doned either, though there is now a more marked tendency for

courts to approach municipal statutes as they would any other stat-

ute, and follow the usual admonition of a province’s Interpretation

Act to give a “fair, large, and liberal” reading of what t he legislature

intended as its objects. This is in l ine with what is known a s “the

modern principle” of statute interpretation: “the words of a legis-

lative text must be read in their ordinary sense harmoniously wit h

the scheme and objects of the Act and the intention of the legisla-

ture” and also the words are “to be read i n their entire context in

ever y case, not just in case s where the words seem ambiguous.”8

4) Municipal by-laws are also to be read according to the same rules

of interpretation as apply to statutes.9

5) Notable cases applying the Di llon’s Rule approach are R v Green-

baum,10 Sun Oil Co v Verdun (City),11 British Columbia v Pride Clean-

ers & Dyers Ltd,12 and Ottawa Electric Light Co v Ottawa (City).13

6) MacIlreith was approved by the Supreme Court of Canada in the 1975

case of Thorson v Canada (Attorney General),14 which canvas sed prin-

ciples regarding the discretionary granti ng of standing. Standing re-

mains a complex problem in land-use matters. MacIlreith establishes

the right of a ratepayer to challenge illegal expenditures, but issues

remain as to who is entit led to notice of pending decisions, who may

make formal appeal s, who may challenge the legality of decisions,

and who may enforce rules.

6 See United Taxi Drivers’ Fellowship of Southern Alb erta v Calgary (City), 2004

SCC 19.

7 Municipal Govern ment Act, SNS 1998, c 18, s 65(s).

8 Ruth Sullivan, Driedger and Sullivan o n the Construction of Statute s, 4th ed

(Markham, ON: Butter worths, 2002) at 10 [emphasis in origin al].

9 See Rexlington Heights Ltd v Onta rio (2005), 15 MPLR (4th) 117 (Ont SCJ).

10 [1993] 1 SCR 674.

11 [1952] 1 SCR 222.

12 (1964), 49 DLR (2d) 752 (BCSC).

13 (1906), 12 OLR 290 (CA).

14 (1975), 43 DLR (3d) 1 (SCC).