St. Charles Enterprises Ltd. et al. v. Winnipeg (City), 2015 MBCA 20

• Judge: Monnin, Burnett and Mainella, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: February 06, 2015
• Jurisdiction: Manitoba
• Citations: 2015 MBCA 20;(2015), 315 Man.R.(2d) 179 (CA)

St. Charles Ent. v. Winnipeg (2015), 315 Man.R.(2d) 179 (CA);

      630 W.A.C. 179

MLB headnote and full text

Temp. Cite: [2015] Man.R.(2d) TBEd. MR.002

St. Charles Enterprises Ltd. and 2221969 Manitoba Ltd. (applicants/appellants) v. The City of Winnipeg (respondent/respondent)

(AI 14-30-08245; 2015 MBCA 20)

Indexed As: St. Charles Enterprises Ltd. et al. v. Winnipeg (City)

Manitoba Court of Appeal

Monnin, Burnett and Mainella, JJ.A.

February 6, 2015.

Summary:

In 1984, the city designated the St. Charles Hotel (the hotel) a historical building under the Historical Buildings Bylaw. In December 2010, amendments to the City of Winnipeg Charter came into force under which the city could register historical designations in the land titles office. Section 157.1(4)(b) stated that, for buildings that had already received historical designations, the city "must register a notice" within one year of December 2010. The city filed the required notice for the hotel in February 2011 (two months late). Asserting that s. 157.1(4)(b) was mandatory and that the city's failure to comply had to have consequences, the hotel's owners applied for orders requiring the land titles office to discharge the notice filed by the city and to strike the hotel from the historical buildings list.

The Manitoba Court of Queen's Bench, Winnipeg Centre, in a decision reported at (2014), 305 Man.R.(2d) 112, dismissed the application. The owners appealed.

The Manitoba Court of Appeal dismissed the appeal.

Land Regulation - Topic 2944

Land use control - Heritage protection - Designation of properties (incl. de-designation) - Procedure - Section 157.1(4)(b) of the City of Winnipeg Charter (CWC) stated that the city "must register a notice" of historical designation in the land titles office within one year of December 2010 for buildings that had previously been designated as historical buildings under the city's bylaw - The city filed the required notice for the St. Charles Hotel two months late - An application judge found that s. 157.1(4)(b) was directory, rather than mandatory, and that the noncompliance was minor and had not prejudiced the owners of the hotel - The owners' application to remove the notice was dismissed - The Manitoba Court of Appeal dismissed the owners' appeal - The application judge correctly found that s. 157.1(4)(b) was directory, rather than mandatory, as it encompassed the larger public purpose of the preservation of historical buildings and not just the mechanism by which notices were registered - The court rejected arguments based on ss. 4 and 7(1) of the CWC - As to s. 4, there was no inconsistency - Section 7(2), as a section of general application, was of no assistance in determining whether s. 157.1(4)(b) was mandatory or directory - There was no error in the application judge's exercise of his discretion not to remove the notice - As he noted, the delay was insignificant and the owners had not been prejudiced.

Statutes - Topic 5126

Operation and effect - Enabling Acts - Obligatory, mandatory, imperative and absolute Acts - What constitutes a mandatory power - [See Land Regulation - Topic 2944 ].

Statutes - Topic 5130

Operation and effect - Enabling Acts - Obligatory, mandatory, imperative and absolute Acts - Whether mandatory enactment is obligatory or directory only - [See Land Regulation - Topic 2944 ].

Statutes - Topic 5164

Operation and effect - Enabling Acts - Directory Acts - What constitutes - [See Land Regulation - Topic 2944 ].

Cases Noticed:

B.W. v. Child and Family Services of Winnipeg (2009), 245 Man.R.(2d) 186; 466 W.A.C. 186; 2009 MBCA 95, refd to. [para. 4].

Statutes Noticed:

City of Winnipeg Charter, S.M. 2002, c. 39, sect. 157.1(4)(b) [para. 3].

Counsel:

J.A. Kagan and A.D.F. Sain, for the appellant;

D.A.M. Pambrun, for the respondent.

This appeal was heard and determined on February 6, 2015, by Monnin, Burnett and Mainella, JJ.A., of the Manitoba Court of Appeal. On February 20, 2015, Monnin, J.A., delivered the following written reasons for the court.