Supreme Court of Canada
Hutchison v. City of Westmount, (1914) 49 S.C.R. 621
Date: 1914-05-18
James Hutchison (Plaintiff) Appellant;
and
The City of Westmount (Defendant) Respondent.
1914: March 2; 1914: May 18.
Present: Sir Charles Fitzpatrick C.J. and Idington, Duff, Anglin and Brodeur JJ.
ON APPEAL FROM THE COURT OF KING’S BENCH, APPEAL SIDE, PROVINCE OF QUEBEC.
Municipal corporation—Dedication of lands for highway—Opening of street—Construction of agreement.
A land company made a donation of certain lots of land to the municipal corporation for the purpose of a highway and the corporation agreed to open and construct a portion of the street when necessary.
Held, that, on the proper construction of the agreement, in view of the powers conferred upon the corporation by section 85 of its charter (Que.), 56 Vict. ch. 54, the word “necessary” in the agreement should be construed as meaning “necessary in the public or general interest” and not merely in the interest of the other party to the agreement. In re Morton and the City of St. Thomas (6 Ont. App. R. 323) and Pells v. Boswell (8 O.R. 680), referred to.
APPEAL from the judgment of the Court of King’s Bench, appeal side, affirming the judgment of the Superior Court, District of Montreal, by which the appellant’s action was dismissed with costs.
The circumstances of the case are stated in the judgments now reported.
Mignault K.C. and Lafleur K. C. for the appellant.
F. S. Maclennan K.C. for the respondent was not called upon for any oral argument.
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The Chief Justice.—I think that this appeal should be dismissed with costs.
Idington J.—Respondent is alleged to have acted in entering into the agreement here in question upon section 85 of the respondent’s charter contained in 56 Vict., ch. 54, which reads as follows:—
85. The council shall have power to purchase, acquire and enter into any land, ground or real estate whatever, within the limits of the town, for the purpose of opening any street or roads through the same, or for forming or making any public parks or squares of a nature to conduce to the health or well-being of the inhabitants of the town, either by amicable arrangements, entered into between the corporation and the proprietors, or any persons interested, or by complying with the provisions, applicable to the corporation, respecting expropriations, and, in the event of its being necessary or advisable, for the purpose of such improvements, to acquire any larger tract of land than may be ultimately required for the purpose of such improvements.
By some means not very clear the Westmount Land Company, on the 15th September, 1897, induced respondent’s council on its behalf to accept, for the purposes of streets, the gift of a few lots of the property which the company seems to have acquired and divided into lots, and, as appellant alleges, to agree to bind the respondent to assume the burden of constructing certain streets. The successors of that council have never been able to find it was necessary in the public interest to open said streets to the extent desired by appellant, who claims to be a purchaser of a considerable number of lots in the survey of the Westmount Land Co., Limited, to be served by said streets.
He claims herein a declaration that respondent is under the obligation arising from said contract “to properly open and grade Grosvenor Avenue opposite” his property “and in its entire extent,” and that the
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corporation, defendant, be condemned to pay him “ten thousand dollars with interest and costs.”
He reserves all other rights and remedies and future damages.
It has been found by the two courts below as a matter of fact that the extension of the said street as demanded has never yet become necessary in the public interest.
Why should we, contrary to our usual rule (which, of course, has its exceptions) be asked to reverse such finding of fact?
It is suggested this fact is to be determined by the construction of the instrument relied upon by appellant and hence is not purely a question of fact, but rather of law.
I see no reason to complain of the construction adopted by the learned trial judge which implies in the term “when necessary” only when in the public interest such work shall become necessary, and not merely when the prospects of the speculator making a profit might render it necessary to have the work done.
If the latter must be the construction put upon the contract, then it was an illegal contract.
Indeed, if the private interest in any other way than when and so far as that interest might coincide with the public interest were to be allowed to enter into the making of such a contract it must be held null and can furnish no basis for any undertaking by such a corporate body as the respondent.
In addition to the authorities upon which the learned judge relied I might refer to such cases as In re Morton and City of St. Thomas[1], and Pells v. Boswell[2], where, as well as in a note on page 333 in
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Biggar’s Municipal Manual, numerous authorities are collected which shew how jealously the courts have guarded against the infringement of the principle. Most of these cases turned upon just such municipal power as given respondent’s council by above-quoted section of the statute.
And though not binding upon this court they illustrate a principle of law which does bind this as well as other courts.
Indeed, I know of nothing in the administration of our municipal systems which needs one to be more watchful lest evil creep in, than in relation to just such cases as this. It is so easy to present a plausible case of alleged identity of public and private interest (an apt, but inaccurate, phrase) when in truth it may only be the latter that is kept in view.
A perusal of the evidence herein in support of appellant’s case alone destroys any possibility of holding such a work as sought herein to have execution decreed and the expenses thereof to be imposed upon the public by order of the court as in truth necessary from a purely public interest in its promotion.
It is a work evidently needed to develop the appellant’s property. The expense would be quite beyond what any reasonable expectations on the part of the public to reap any benefit therefrom can be found to justify.
There is no similarity between this case and what was agreed to be done in the case of Town of Outremoni v. Joyce[3]. The only relation the cases can have is that that case illustrated how there may be an identity of private and public interest, and this case shews
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how impossible it is to find that identity. I shall not labour the matter.
I think the appeal should be dismissed with costs.
Duff J.—I think this appeal should be dismissed with costs.
Anglin J.—The plaintiff seeks to enforce an agreement whereby the defendant municipality undertook to open a portion of Grosvenor Avenue “when necessary.” The court of appeal, confirming the dispositif of the judgment of the Superior Court, held that the plaintiff had failed to prove that such opening had become necessary.
The plaintiff complains that without the opening of Grosvenor Avenue his land abutting upon it is inaccessible owing to the lowering of the grade of the boulevard on the south side of the property by the defendant municipality. He maintains that this fact makes the opening of Grosvenor Avenue necessary. There are no residences on lands abutting on Grosvenor Avenue except a summer cottage, and no other land-owner has asked for the opening of the street.
Unless we are to attribute to the municipal council the intention of making a most improper agreement, one wholly for the benefit of the Westmount Land Company and its grantees and disadvantageous and unfair to the city at large and its ratepayers, which would be an improper exercise of their powers, In re Morton and City of St. Thomas[4], we must give to the word “necessary” the meaning “necessary in the public or general interest,” and not merely in the interest of
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the other party to the agreement. That is, in my opinion, the meaning which should be given to it. I agree with Mr. Justice Carroll that such necessity has not been shewn.
Moreover, I think it is reasonable and proper to ascribe to the municipal council the intention to preserve to itself and to its successors the right to determine when such necessity shall have arisen. It can scarcely have meant to abdicate the discretionary power in regard to opening streets vested in it by the legislature and to confer upon the courts the right to decide when that power should be exercised. Such an abdication would result from the agreement if construed as the appellant contends for. Looked at most favourably to the plaintiff the word “necessary” is ambiguous and should not be given a construction which would imply grave dereliction of duty by a public body.
The appeal fails and should be dismissed with costs.
Brodeur J.—I agree that this appeal should be dismissed for the reasons given by my brother Anglin.
Appeal dismissed with costs.
Solicitor for the appellant: P. B. Mignault.
Solicitors for the respondent: Maclennan & Baker.