Tuteckyj v. Winnipeg (City), 2012 MBCA 100

• Judge: Steel, Freedman and Beard, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: October 18, 2011
• Jurisdiction: Manitoba
• Citations: 2012 MBCA 100;(2012), 284 Man.R.(2d) 261 (CA)

Tuteckyj v. Winnipeg (2012), 284 Man.R.(2d) 261 (CA);

      555 W.A.C. 261

MLB headnote and full text

Temp. Cite: [2012] Man.R.(2d) TBEd. NO.002

Wasyl Tuteckyj, also known as Walter Tuteckyj (plaintiff/appellant) v. The City of Winnipeg (defendant/respondent)

(AI 11-30-07501; 2012 MBCA 100)

Indexed As: Tuteckyj v. Winnipeg (City)

Manitoba Court of Appeal

Steel, Freedman and Beard, JJ.A.

October 26, 2012.

Summary:

Tuteckyj, 88 years old at the time of trial, sought compensation from the City of Winnipeg for the removal and disposal of personal property from his premises. He alleged that the City acted unreasonably, in bad faith and abused its public authority. In addition to damages, he sought an order that would delete the removal and disposal costs from the tax roll applicable to the premises.

The Manitoba Court of Queen's Bench, in a decision reported at 260 Man.R.(2d) 112, dismissed the claim. The personal property was lawfully removed in accordance with the City of Winnipeg Charter and the "unsightly premises bylaw". Such removal was both justified and reasonable. Tuteckyj appealed.

The Manitoba Court of Appeal dismissed the appeal.

Land Regulation - Topic 5008

Unsightly premises - Notice to remove or destroy - [See third Land Regulation - Topic 5017 ].

Land Regulation - Topic 5017

Unsightly premises - Removal or clean-up - The plaintiff appealed the dismissal of his claim against the City of Winnipeg for damages arising out of the removal, by the City, of a large amount of personal property from the yard around his residence - The City's position was that it was acting pursuant to its authority under the City of Winnipeg Charter and the unsightly premises bylaw - The plaintiff argued that the trial judge erred in failing to apply the rule of strict interpretation, in favour of the owner of private property - The Manitoba Court of Appeal held that the ground of appeal had no merit - "[M]unicipal legislation is no longer exempted from the application of the general rule of statutory interpretation that has embraced a broad and purposive approach. ...  Given these developments in the law, it is clear that the strict compliance approach to statutory interpretation regarding the power of public entities, including municipalities, over private property that was in effect at the time of the decision in Riopelle [v. Montreal (City) (1911) (S.C.C.)] has been replaced by the Supreme Court of Canada's adoption of the broad and purposive approach" - See paragraphs 53 and 54.

Land Regulation - Topic 5017

Unsightly premises - Removal or clean-up - The plaintiff appealed the dismissal of his claim against the City of Winnipeg for damages arising out of the removal, by the City, of a large amount of personal property from the yard around his residence - The City's position was that it was acting pursuant to its authority under the City of Winnipeg Charter, and the unsightly premises bylaw - The trial judge found that virtually all of the items removed by the City fell within s. 5(1)(a) of Schedule A to the bylaw (i.e., were rubbish, garbage, junk and other debris) - The plaintiff argued that the trial judge erred in holding that s. 5(1)(a) applied to property specifically described in ss. 5(1)(b), (c) and (d) - The Manitoba Court of Appeal held that the ground of appeal had no merit - The categories in ss. 5(1)(a) to (d) were not meant to be read as being mutually exclusive - Rather, they were clearly overlapping, such that an item of personal property might be included in more than one category - See paragraphs 60 to 75.

Land Regulation - Topic 5017

Unsightly premises - Removal or clean-up - The plaintiff received a letter (the "Order") from the City of Winnipeg, ordering him to "remove and properly dispose of all articles including old lumber, shelving, tires, windows and various other junk and debris" in his front and rear yard - He failed to comply - The City, proceeding under its unsightly premises bylaw, removed and disposed of personal property from the premises and added $10,266.70 to the property tax bill - The plaintiff sought compensation and the deletion of the costs from the tax bill - He submitted that the Order was vague and deficient, and that the City removed more than it was entitled to remove - The trial judge found that the wording of the Order was reasonable and sufficiently specific to inform the plaintiff of what he was required to do, and dismissed the claim - The Manitoba Court of Appeal held that the trial judge did not commit any palpable and overriding error in holding that the notice to the plaintiff was sufficient - "The sufficiency of the notice must be determined in the context of the facts of the case rather than looking at the notice in isolation." - See paragraphs 76 to 87.

Municipal Law - Topic 3731

Bylaws - Construction or interpretation - Purpose - [See first Land Regulation - Topic 5017 ].

Municipal Law - Topic 3761

Bylaws - Particular bylaws (incl. scope of) - General - [See second Land Regulation - Topic 5017 ].

Statutes - Topic 510

Interpretation - Strict interpretation - [See first Land Regulation - Topic 5017 ].

Cases Noticed:

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 9].

H.L. v. Canada (Attorney General) et al., [2005] 1 S.C.R. 401; 333 N.R. 1; 262 Sask.R. 1; 347 W.A.C. 1; 2005 SCC 25, refd to. [para. 9].

Macatula v. Tessier (2003), 173 Man.R.(2d) 55; 293 W.A.C. 55; 2003 MBCA 31, refd to. [para. 9].

Knock v. Dumontier et al. (2006), 208 Man.R.(2d) 121; 383 W.A.C. 121; 2006 MBCA 99, refd to. [para. 9].

Albionex (Overseas) Ltd. et al. v. ConAgra Ltd. et al. (2011), 270 Man.R.(2d) 293; 524 W.A.C. 293; 2011 MBCA 95, refd to. [para. 9].

Waxman et al. v. Waxman et al. (2004), 186 O.A.C. 201 (C.A.), leave to appeal refused (2005), 339 N.R. 200; 207 O.A.C. 400 (S.C.C.), refd to. [para. 11].

R. v. R.E.M., [2008] 3 S.C.R. 3; 380 N.R. 47; 260 B.C.A.C. 40; 439 W.A.C. 40; 2008 SCC 51, refd to. [para. 27].

Riopelle v. Montreal (City) (1911), 44 S.C.R. 579, refd. to. [para. 41].

Prince George (City) v. Riemer, [2010] B.C.T.C. Uned. 118; 68 M.P.L.R.(4th) 143; 2010 BCSC 118, refd to. [para. 43].

McKenna v. Woodstock (Town) (1992), 131 N.B.R.(2d) 330; 333 A.P.R. 330 (T.D.), refd to. [para. 43].

Bayshore Shopping Centre Ltd. v. Nepean (Township) et al., [1972] S.C.R. 755, refd to. [para. 49].

Soo Mill & Lumber Co. v. Sault Ste Marie, [1975] 2 S.C.R. 78; 2 N.R. 429, refd to. [para. 49].

St. Peter's Evangelical Lutheran (Ottawa) (Trustees) v. Ottawa (City) et al., [1982] 2 S.C.R. 616; 45 N.R. 271, refd to. [para. 49].

Leiriao v. Val-Bélair (Ville), [1991] 3 S.C.R. 349; 129 N.R. 188, refd to. [para. 49].

United Taxi Drivers' Fellowship of Southern Alberta et al. v. Calgary (City), [2004] 1 S.C.R. 485; 318 N.R. 170; 346 A.R. 4; 320 W.A.C. 4; 2004 SCC 19, refd to. [para. 49].

Halifax (Regional Municipality) v. DeWolfe (E.) Trucking Ltd. et al. (2007), 257 N.S.R.(2d) 276; 820 A.P.R. 276; 2007 NSCA 89, refd to. [para. 49].

Mulder Investments Ltd. v. Winnipeg (City) (1981), 15 Man.R.(2d) 327 (C.A.), refd to. [para. 52].

Hechter et al. v. Winnipeg (City) et al. (2004), 190 Man.R.(2d) 22; 335 W.A.C. 22; 2004 MBCA 142, refd to. [para. 52].

Shell Canada Products Ltd. v. Vancouver (City), [1994] 1 S.C.R. 231; 163 N.R. 81; 41 B.C.A.C. 81; 66 W.A.C. 81, refd to. [para. 54].

Medical Centre Apartments Ltd. and Winnipeg (City), Re (1969), 3 D.L.R.(3d) 525 (Man. C.A.), refd to. [para. 64].

R. v. Hunter (I.F.) (2000), 139 B.C.A.C. 315; 227 W.A.C. 315; 2000 BCCA 363, refd to. [para. 65].

McDonald v. Grand Falls (Town) (1982), 37 Nfld. & P.E.I.R. 293; 104 A.P.R. 293 (Nfld. C.A.), refd to. [para. 92].

Statutes Noticed:

City of Winnipeg Charter, S.M. 2002, c. 39, sect. 185(1) [para. 14].

Authors and Works Noticed:

Côté, Pierre-André, Beaulac, Stéphane, & Devinat, Mathieu, The Interpretation of Legislation in Canada (4th Ed. 2011), pp. 47-48 [para. 47]; 359 [para. 61]; 513 [para. 48].

Sullivan, Ruth, Sullivan on the Construction of Statutes (5th Ed. 2008), pp. 210 [para. 68]; 213-214 [para. 69]; 244 [paras. 62, 63].

Counsel:

S. Green, Q.C., for the appellant;

M.A. Jack, for the respondent.

This appeal was heard on October 18, 2011, before Steel, Freedman and Beard, JJ.A., of the Manitoba Court of Appeal. In reasons written by Beard, J.A., the Court delivered the following judgment, dated October 26, 2012.