R. v. Tener

R. v. Tener
Collection
Supreme Court Judgments
Date
1985-05-09
Report
[1985] 1 SCR 533
Case number
17285
Judges
Dickson, Robert George Brian; Beetz, Jean; Chouinard, Julien; Wilson, Bertha
On appeal from
British Columbia
Subjects
Expropriation
Notes
SCC Case Information: 17285
Decision Content
R. v. Tener, [1985] 1 S.C.R. 533
Her Majesty The Queen in Right of the Province of British Columbia Appellant;
and
David Evans Tener and Gertrude Marina Tener Respondents.
File No.: 17285.
*1983: October 12 and 13.
*Present: Ritchie, Dickson, Beetz, Chouinard and Wilson JJ.
**Re‑hearing: 1985: January 23 and 24; 1985: May 9.
**Present: Dickson C.J. and Beetz, Estey, McIntyre,Chouinard, Wilson and Le Dain JJ.
on appeal from the court of appeal for british columbia
Compensation ‑‑ Profit à prendre in gross ‑‑ Mineral claims located in provincial parks ‑‑ Crown refused to issue permits necessary for exploitation ‑‑ Whether or not expropriation or injurious affection ‑‑ Whether or not compensation payable ‑‑ Park Act, 1965 (B.C.), c. 31, ss. 6, 9, 11, 18 (now R.S.B.C. 1979, c. 309) ‑‑ Ministry of Highways and Public Works Act, R.S.B.C. 1960, c. 109, ss. 14, 15, 18(3) (now Ministry of Transportation and Highways Act, R.S.B.C. 1979, c. 280, ss. 26, 29) ‑‑ Lands Clauses Act, R.S.B.C. 1960, c. 209, ss. 4, 69 (now Expropriation Act, R.S.B.C. 1979, c. 117) ‑‑ Mineral Act, R.S.B.C. 1936, c. 181, ss. 17, 23; R.S.B.C. 1960, c. 244, s. 12(1a); 1977 (B.C.), c. 54, ss. 7, 10, 21.
Respondents were the registered owners of mineral claims on lands now located within Wells Gray Provincial Park. The conditions governing the exploitation of a natural resource in Wells Gray Park gradually became more onerous and, for several years prior to the action, respondents were denied the park use permit necessary to explore or work the claims. Respondents were finally advised by letter that no new exploration or development work would be permitted under current park policy and were asked to itemize a quit claim price. This action was commenced‑‑and came by way of stated case‑‑because respondents considered their opportunity to explore their claims had been conclusively denied. The central issue was whether a refusal by the Crown to grant a park use permit needed by respondents to exploit their mineral claims gives rise to a statutory right to compensation. The trial judge found that no compensation was payable, but the Court of Appeal held that respondents were entitled to compensation under the Lands Clauses Act. The Crown appealed.
Held: The appeal should be dismissed.
Per Beetz, Estey, McIntyre, Chouinard and Le Dain JJ.: Respondents' interest was expropriated through the operation of the Park Act, and accordingly, the Lands Clauses Act had no application and compensation was to be found in the Ministry of Highways and Public Works Act. The denial of the park use permit, given the assumption that the combined effect of the Mineral Act and the Park Act required such a permit to remove these granted minerals, made the prohibitions of the Park Act operative with the result that the rights granted to the respondents were reduced in law and recovered in part by the Crown. This process, which is to be distinguished from zoning and the regulation of specific activity on certain land, constituted a taking for which compensation was required notwithstanding the fact that the respondents retained their interest in the minerals themselves.
In determining compensation, only the regulations under the Mineral Act are to be considered in valuing the expropriated mineral rights: they were regulations qua minerals unlike other regulations qua park use which were tied to the taking process. The interest taken must represent the total value of the minerals less whatever value might attach to a possible future reversal of executive policy relating to removal permits.
Per Dickson C.J. and Wilson J.: This was a case of expropriation under s. 11(c) of the Park Act for which compensation was payable under the Highways Act. Respondents had a profit à prendre in the land‑‑a right to go on the land for the limited purpose of severing the minerals and making them their own‑‑rather than two separate interests consisting of the minerals and the access rights. The profit à prendre was held in gross by respondents and could be extinguished by unity of seisin. The Crown did not merely prevent respondents from realizing their interest through regulation, but expropriated their interest in that it acquired, through its permanent refusal of a permit, title to the fee free from the encumbrance of the profit à prendre. This derogation by the Crown from its earlier grant, while lawful, defeated the respondents' interest and amounted to an expropriation.
The Park Act contemplates compensation being paid in case of expropriation but not in the case of injurious affection simpliciter. The Highways Act permits compensation for expropriation and also for injurious affection coupled with expropriation and applied in this case to determine the compensation payable on the expropriation. The Lands Clauses Act permits compensation for injurious affection simpliciter but had no application in this case because of s. 18(3) of the Highways Act.
A right to compensation must be found in the statute. If land has been expropriated the statute will be construed in light of a presumption in favour of compensation but no such presumption exists in the case of injurious affection simpliciter.
Cases Cited
Manitoba Fisheries Ltd. v. The Queen, [1979] 1 S.C.R. 101; Re Gibson and City of Toronto (1913), 28 O.L.R. 20, considered; In Re Reliance Gold Mining and Milling Co. (1908), 13 B.C.R. 482; Cherry v. Petch, [1948] O.W.N. 378; Harrison v. Mobbs (1908), 12 O.W.R. 465; Nicholson v. Williscroft, [1921] 3 W.W.R. 890 (S.C.C.); Nicholson v. Mustard, [1921] 3 W.W.R. 890 (Alta. C.A.); Royal Trust Co. v. City of Montreal (1918), 57 S.C.R. 352; Kramer v. Wascana Centre Authority, [1967] S.C.R. 237; Attorney‑General v. De Keyser’s Royal Hotel, Ltd., [1920] A.C. 508; Re Bridgman and City of Toronto, [1951] O.R. 489; Sisters of Charity of Rockingham v. The King, [1922] 2 A.C. 315; The Queen v. Loiselle, [1962] S.C.R. 624, referred to.
Statutes and Regulations Cited
Expropriation Act, R.S.B.C. 1979, c. 117, ss. 2, 67.
Freshwater Fish Marketing Act, R.S.C. 1970, c. F‑13.
Lands Clauses Act, R.S.B.C. 1960, c. 209, ss. 4, 69.
Mineral Act, R.S.B.C. 1936, c. 181, ss. 17, 23.
Mineral Act, R.S.B.C. 1960, c. 244, s. 12(1a).
Mineral Act, 1973 (B.C.), c. 52, s. 9.
Mineral Act, 1977 (B.C.), c. 54, ss. 7, 10, 21.
Mineral Land Tax Act, R.S.B.C. 1979, c. 260.
Mines Right‑of‑way Act, R.S.B.C. 1936, c. 187, s. 3.
Mining Right of Way Act, R.S.B.C. 1979, c. 266, s. 2.
Ministry of Highways and Public Works Act, R.S.B.C. 1960, c. 109, ss. 14, 15, 18(3).
Ministry of Transportation and Highways Act, R.S.B.C. 1979, c. 280, ss. 26, 29.
Park Act, 1965 (B.C.), c. 31, ss. 6, 9, 11, 18.
Park Act, R.S.B.C. 1979, c. 309.
Park (Amendment) Act, 1973 (B.C.), c. 67, s. 3.
Provincial Parks Act, R.S.B.C. 1936, c. 211, s. 2.
Rules of Court [British Columbia], s. 33.
Authors Cited
Black’s Law Dictionary, 5th ed., St. Paul, Minn., West Publishing Co., 1979.
Challies, George S. The Law of Expropriation, 2nd ed., Montreal, Wilson & Lafleur Ltd., 1963.
Nichols, Philip. The Law of Eminent Domain, vol. 4, revised 3rd ed. by Julius L. Sackman, New York, Matthew Bender, 1973.
Stroud’s Judicial Dictionary, vol. 4, 4th ed., London, Sweet & Maxwell Ltd., 1974.
Todd, Eric C.E. The Law of Expropriation and Compensation in Canada, Toronto, Carswell Co., 1976.
Todd, Eric C.E. "The Mystique of Injurious Affection in the Law of Expropriation" (1967), U.B.C.L. Rev.‑‑C. de D. (Centennial Edition) 125, 125‑69.
APPEAL from a judgment of the British Columbia Court of Appeal (1982), 133 D.L.R. (3d) 168, 34 B.C.L.R. 285, 24 L.C.R. 266, [1982] 3 W.W.R. 214, allowing an appeal from a judgment of Rae J. Appeal dismissed.
W. A. Pearce, for the appellant.
G. S. Cumming, Q.C., and B. M. Joyce, for the respondents.
The reasons of Dickson C.J. and Wilson J. were delivered by
1. Wilson J.‑‑The respondents are the registered owners of sixteen mineral claims granted by the Crown in Right of British Columbia to the respondents' predecessors in title in 1934. The fee in the land including the surface rights was and continues to be in the Crown. The respondents paid $100,000 for the claims. The grants contained the proviso that they were "subject to the laws for the time being in force respecting mineral claims". By various provisions of the British Columbia Mineral Act, R.S.B.C. 1936, c. 181, and the Mines Right‑of‑way Act, R.S.B.C. 1936, c. 187, as then in force, the owners of mineral claims had the right to all minerals in the claims, the right to the use and possession of the surface for the purpose of getting the minerals out, and the right to take and use a right of way to the claims. If, however, the right of way was to cross Crown land, as would be necessary in this case, the consent of the Minister of Lands was required.
2. In 1939, the Province by order in council pursuant to s. 2 of the Provincial Parks Act, R.S.B.C. 1936, c. 211, created Wells Gray Park which encompassed the land subject to the respondents' mineral claims. No attempt was made at that time to expropriate the claims. A new Park Act was enacted in 1965 (1965 (B.C.), c. 31) and under s. 18(1) of that Act a park use permit had to be obtained before a natural resource in a park could be exploited. Depending on whether the park was classified as Class A or Class B different standards were to be applied by the Minister in deciding whether or not to grant a permit. By section 9(1)(a) the Minister's discretion to issue a permit for a Class A park was restricted to situations where it was "necessary to the preservation or maintenance of the recreational values of the park involved". Less severe standards were applicable to Class B parks.
3. In 1973 Wells Gray Park was, by an amendment (1973 (B.C.), c. 67, s. 3), to the Park Act upgraded from a Class B to a Class A park. In the same year, the Mineral Act, R.S.B.C. 1960, c. 244, was amended by 1973 (B.C.), c. 52, s. 9, by the addition of s. 12(1a) which provided that notwithstanding any mineral claim anyone exploring for or producing minerals in a park had to have the authorization of the Lieutenant Governor in Council.
4. In 1973 the owners of the claims arranged for work to be done on the claims and written permission was given by the Parks Branch for flights into the claims and out again. However, when park use permits were requested by the respondents in 1974, 1975, 1976 and 1977 none was issued. Then on January 24, 1978 the respondents received the following letter from the Director of the Parks Branch:
Your letter of December 6, 1977, to the Honourable Sam Bawlf, Minister of Recreation and Conservation, concerning your application for a Park Use Permit to conduct exploration work on the Summit Group of Crown granted mineral claims located within Wells Gray Provincial Park, has been referred to this office for reply.
As you are aware, the whole subject of mineral claims in Provincial Parks is very complex and has been under investigation for a considerable time. Under the present Parks Branch policy respecting mineral claims, we regret to advise that no new exploration or development work may be authorized within a Provincial Park.
Notwithstanding the above, would you kindly quote us an itemized quit claim price, showing a comprehensive breakdown of expenditures incurred respecting the Summit Group of claims for our records and consideration.
Your patience and concern in this matter is appreciated.
5. The respondents treated the letter as the event which conclusively denied them the opportunity to exploit their mineral claims and they issued their writ in May 1979 claiming compensation in respect of the initial acquisition costs of the claims and of the expenditures made on them throughout the years. The amounts claimed are quite large. The value of the historical expenditures was alleged to be about $1,500,000 and the present value of the lost opportunity to exploit them was assessed at around $3,000,000. Since the deposit is said to contain gold and silver, the calculation of the latter figure may fluctuate with the change in price of those metals.
6. The Crown filed a statement of defence and the parties agreed to state four questions for the opinion of the Court in the form of a special case under Rule 33 of the [British Columbia] Rules of Court. The four questions are:
1. Are the Plaintiffs entitled to compensation under the Lands Clauses Act, R.S.B.C. 1960, Chapter 209, for monies expended by the Plaintiffs and their predecessors in title and for loss of opportunity and loss of profits in respect of the Crown Grants?
2. Are the Plaintiffs entitled to compensation under the Ministry of Highways and Public Works Act, R.S.B.C. 1960, Chapter 109, for monies expended by the Plaintiffs and their predecessors in title and for loss of opportunity and loss of profits in respect of the Crown Grants?
3. If the Plaintiffs are entitled to compensation under either the Lands Clauses Act or the Ministry of Highways and Public Works Act is such compensation to be assessed pursuant to the arbitration procedures set out in the statute or statutes or by action at law?
4. Are the Plaintiffs entitled to damages at common law for monies expended by the Plaintiffs and their predecessors in title and for loss of opportunity and loss of profits in respect of the Crown Grants?
7. The special case was argued before Mr. Justice Rae who answered all four questions in the negative. His judgment was appealed to the British Columbia Court of Appeal which answered the first question in the affirmative. The Court held that the respondents were entitled to compensation under the Lands Clauses Act for the injurious affection to their mineral claims and associated rights caused by the refusal of the Minister of Recreation and Conservation to issue a park use permit to the respondents on January 24, 1978. The Crown comes to this Court by leave of the British Columbia Court of Appeal.
8. The central issue is whether a refusal by the Crown in Right of British Columbia to grant a park use permit so as to enable the respondents to exploit their mineral claims gives rise to a statutory right to compensation. In order to answer this question it is necessary to consider:
(a) the nature of the respondents' interest;
(b) the effect of the refusal of the permit on that interest and, in particular, whether it constitutes an expropriation of or injurious affection to that interest; and
(c) whether, if it constitutes expropriation or injurious affection, a statutory right of compensation is provided under any or a combination of any of the applicable statutes.
(a) The Nature of the Respondents' Interest
9. It seems to be common ground between the parties that the mineral claims themselves constitute an interest in land. The respondents submit, however, and Mr. Justice Rae agreed with them, that the right to sever the minerals and to enter upon the surface for this purpose is also an interest in land in the nature of a profit à prendre. The learned Chambers Judge distinguished these two interests in land because in his view the refusal of a permit could not be viewed as an expropriation of the mineral claims themselves. The issue for him, therefore, was whether it could be viewed as an expropriation of the surface rights. He found that it could not. This was the end of the matter as far as he was concerned because he construed the applicable legislation as requiring an actual "taking" of some interest in land before compensation was payable and there was no such "taking" here.
10. The Court of Appeal found that an actual taking was unnecessary. Compensation was payable under the Lands Clauses Act for injurious affection without a taking and the denial of the permit constituted injurious affection of the respondents' mineral claims.
11. Before proceeding to a detailed consideration of the applicable legislation it is necessary, I think, to analyze with greater particularity the nature of the respondents' interest in the land. I think the learned Chambers Judge may have been in error in treating the respondents as having two separate and distinct interests in the land‑‑the mineral claims and the right to go on the surface for the purpose of developing them‑‑and characterizing the latter interest as a profit à prendre. It has been held that an owner of a mineral claim with ancillary surface rights cannot dispose of its surface rights as if they were a separate interest. Such rights can be transferred only in conjunction with a transfer of the mineral claim itself: see In Re Reliance Gold Mining and Milling Co. (1908), 13 B.C.R. 482, per Wilson Lo. J., at p. 483. I believe that what the respondents had was one integral interest in land in the nature of a profit à prendre comprising both the mineral claims and the surface rights necessary for their enjoyment.
12. A profit à prendre is defined in Stroud’s Judicial Dictionary (4th ed.), vol. 4, at p. 2141, as "a right vested in one man of entering upon the land of another and taking therefrom a profit of the soil". In Black’s Law Dictionary (5th ed.), it is defined as "a right to make some use of the soil of another, such as a right to mine metals, and it carries with it the right of entry and the right to remove and take from the land the designated products or profit and also includes the right to use such of the surface as is necessary and convenient for exercise of the profit".
13. Wells J. elaborated on the nature of a profit à prendre in Cherry v. Petch, [1948] O.W.N. 378, where he said, at p. 380:
It has been said that a profit à prendre is a right to take something off the land of another person. It may be more fully defined as a right to enter on the land of another person and take some profit of the soil such as minerals, oil, stones, trees, turf, fish or game, for the use of the owner of the right. It is an incorporeal hereditament, and unlike an easement it is not necessarily appurtenant to a dominant tenement but may be held as a right in gross, and as such may be assigned and dealt with as a valuable interest according to the ordinary rules of property.
It is important to note that it is the right of severance which results in the holder of the profit à prendre acquiring title to the thing severed. The holder of the profit does not own the minerals in situ. They form part of the fee. What he owns are mineral claims and the right to exploit them through the process of severance. This may be significant when attempting to answer the questions: what constitutes the expropriation of a profit à prendre? what constitutes injurious affection in the case of a profit à prendre?
14. Profits à prendre may be held independently of the ownership of any land, i.e., they may be held in gross. In this they differ from easements. Alternatively, they may be appurtenant to land as easements are, i.e., they may be a privilege which is attached to the ownership of land and increases its beneficial enjoyment. In this case the respondents would appear to have a profit à prendre in gross since they do not own any land to which the profit is appurtenant.
15. Profits à prendre in gross are extinguished by unity of seisin, i.e., if the holder of the profit either:
(a) releases it in favour of the owner of the land in which the profit subsists; or
(b) becomes the owner of the land in which the profit subsists.
The extinguishment arises from the fact that if the ownership of the profit and the ownership of the land in which the profit subsists devolve on the same person, the profit can no longer exist as a separate interest in the land. The profit merges in the fee and is extinguished.
(b) The Effect of the Refusal of the Permit
16. It seems to me that the effect of the refusal of the permit (and for purposes of this litigation the refusal must be viewed as absolute as opposed to temporary) was, in lay terms, to prevent the respondents from exercising their right to go upon the land for the purpose of severing the minerals and making them their own. They were prevented, in other words, from realizing on their mineral claims. The problem is whether this refusal translates into an expropriation or an injurious affection in law. Before tackling that problem it might be helpful to determine which statutes apply in circumstances such as these and what the respondents would have to show in order to obtain compensation under them.
(c) The Applicable Legislation
17. The following statutory provisions have been put to the Court by counsel as determinative of the respondents' rights:
Section 11 of the Park Act, 1965 (B.C.), c. 31, as amended to 1978 (now R.S.B.C. 1979, c. 309):
11. For the purpose of the establishment or enlargement of any park or recreation area, the Minister, on behalf of Her Majesty the Queen in right of the Province, with the approval of the Lieutenant‑Governor in Council, may
(a) purchase or otherwise acquire, accept, and take possession of land, improvements on land, timber, timber rights, and other rights;
(b) grant, convey, or transfer to any person, in exchange for land, improvements, or timber acquired under clause (a) above, other lands, timber, or rights of Her Majesty the Queen in right of the Province;
(c) expropriate land, and the provisions of the Ministry of Highways and Public Works Act shall apply, mutatis mutandis, in event of expropriation.
Sections 15, 18(3) of the Ministry of Highways and Public Works Act, R.S.B.C. 1960, c. 109 (now the Ministry of Transportation and Highways Act, R.S.B.C. 1979, c. 280, ss. 26, 29):
15. If a person has any claim for real or personal property taken, or for alleged direct or consequent damage to such property arising from the construction or connected with the execution of any Government building, highway, or public work undertaken at the expense of the Province, ...the person may give notice in writing of such claim to the Minister, stating the particulars thereof, and how the same has arisen, and thereupon the Minister may, at any time within thirty days after such notice, offer, by tendering a Provincial Treasury cheque therefor, what he considers a just satisfaction for the same, with notice that unless the sum offered is accepted in thirty days after such offer the said claim shall be submitted to arbitration.
18. ...
(3) The Lands Clauses Act does not apply to proceedings under this Act.
Sections 4, 69 of the Lands Clauses Act, R.S.B.C. 1960, c. 209 (now the Expropriation Act, R.S.B.C. 1979, c. 117, ss. 2, 67):
4. This Act applies
...
(b) to every undertaking authorized by any Act which authorizes the purchase or taking of lands situate in any part of the Province for such undertaking;
and this Act shall be incorporated with every such Act to which this Act applies, and all the clauses and provisions of this Act, save so far as they are expressly varied or excepted by any such Act, apply to the undertaking authorized thereby, so far as the same are applicable to the undertaking, and shall, as well as the clauses and provisions of every other Act which shall be incorporated with such Act, form part of such Act, and be construed, together therewith, as forming one Act.
69. If any party is entitled to any compensation in respect of any land or of any interest therein which has been taken for or injuriously affected by the execution of the works...the party may have the same settled either by arbitration or by the verdict of a jury, as he thinks fit....
18. Mr. Justice Rae found that only the Park Act and the Highways Act had application to the facts of this case. Resort to the Lands Clauses Act was precluded by s. 18(3) of the Highways Act. Accordingly, compensation was available to the respondents only if there had been an expropriation of their interest under s. 11(c) of the Park Act. The learned Chambers Judge discussed the relationship between the statutory provisions as follows:
It is apparent from the foregoing that the intention of the Park Act is that if there is an expropriation of land thereunder there shall be compensation therefor under the Highways Act, and that in that event there shall also be compensation for injurious affection, if any. The Highways Act in s. 14 speaks of "damage thereto" and in s. 15 of "direct or consequent damage". Also, the Lands Clauses Act is specifically excluded. In the two Acts there is a complete code in respect of that for which compensation under the Park Act is intended.
...
Whether that code, i.e. the Park Act and the Highways Act, supra, ever becomes operative in respect of compensation rests on there being an expropriation of land under the Park Act.
As already mentioned, Mr. Justice Rae found that there was no expropriation.
19. Mr. Justice Lambert in the British Columbia Court of Appeal considered the legislative scheme embodied in all three statutes. He agreed with Mr. Justice Rae that if there was an expropriation under the Park Act then there was compensation under the Highways Act for the expropriation and also for any injurious affection associated with the expropriation. However, if there was no expropriation then there was no compensation under a combination of these two statutes in the case of injurious affection simpliciter. Section 11(c) of the Park Act made that very clear. The next question therefore was whether the Lands Clauses Act applied to fill this "gap". If it applied, then there would be compensation for injurious affection in the absence of expropriation. Mr. Justice Lambert disagreed with Mr. Justice Rae that the Park Act and the Highways Act constituted a complete code. If they were a complete code, then there would be no compensation for injurious affection in the case of parks. Why should this be so when there is compensation for injurious affection in the case of highways? The Lands Clauses Act filled that gap when read together with the other two statutes. He found, therefore, that all three Acts should be read together to form a complete scheme as to compensation for both expropriation and injurious affection in the case of parks.
20. It seems to me that the real issue of statutory interpretation is whether you can combine all three statutes in the face of s. 11(c) of the Park Act and s. 18(3) of the Highways Act. There is no doubt that Mr. Justice Lambert is correct when he says that the Lands Clauses Act, if it applies, would permit recovery for injurious affection which in the case of a park would not be permitted if the Park Act and the Highways Act formed a complete code.
21. The Park Act refers you to the Highways Act only if there is an expropriation. If there is an expropriation there can be no doubt that recourse to the Lands Clauses Act is prohibited by s. 18(3) of the Highways Act. But what if you never get to the Highways Act because there is no expropriation, only injurious affection? Can you then move from the Park Act directly to the Lands Clauses Act?
22. Mr. Justice Lambert relies on s. 4 of the Lands Clauses Act for the answer to that question. He says that by its terms that Act applies "to every undertaking authorized by any Act which authorizes the purchase or taking of lands situate in any part of the Province for such undertaking ...." It then goes on to provide for the incorporation of the Lands Clauses Act into the Act authorizing the purchase or taking. Since the Park Act authorizes the purchase or taking of lands, Mr. Justice Lambert reasons, s. 4 of the Lands Clauses Act is triggered and that Act provides compensation for injurious affection simpliciter even although the Park Act itself does not. But is it that simple? Was the Lands Clauses Act intended to provide compensation for injurious affection simpliciter when the Park Act itself deals specifically with expropriation and is silent as to injurious affection? And does the mere authorization in the Park Act to purchase or take lands open up the right to compensation under the Lands Clauses Act even although no lands are in fact purchased or taken under the Park Act pursuant to the authorization? These questions are not easy to answer.
23. Mr. Justice Lambert's reasoning also seems to be premised on the assumption that there is a general rule in favour of compensation which would be violated if the Lands Clauses Act did not apply. He postulates five situations as follows:
(a) compensation to the owner of land taken;
(b) compensation to the owner of land not taken but which is severed from land taken from the same owner;
(c) compensation to the owner of land not taken when other land was taken from the same owner;
(d) compensation to the owner of land not taken when other land was taken from another owner;
(e) compensation to the owner of land not taken when no land was taken from any one but the land suffered direct or consequent damage from the work.
He then says:
If there is no expropriation but land is injuriously affected by the park, then the Ministry of Highways and Public Works Act does not apply. The question then is whether the Lands Clauses Act applies. If it applies it would cover the fifth case that is not otherwise dealt with: injurious affection simpliciter. If it does not apply then it would leave that case without any remedy. On its face the Lands Clauses Act would apply to the fifth case. Section 4 of the Lands Clauses Act governs the application of that Act.
The only remaining question on the general scheme of the legislation is whether, in spite of the wording of s. 4, the Lands Clauses Act does not apply because the Park Act and the Ministry of Highways and Public Works Act are intended to be a complete code in themselves covering all questions of compensation for damage to land as a result of a park. In such a case the Lands Clauses Act would be said to be inapplicable by reason of its implied exclusion by the complete code.
And later he says:
The Park Act and the Ministry of Highways and Public Works Act, when taken together, only cover the first four cases that I have set out above. They do not cover the fifth case. But for Highways, Public Buildings and other Public Works all five cases are covered. Why should there be an exception from the general rule in the case of Parks? I can see no reason. But in any case the only question is whether the two Acts alone constitute a complete code. With this evident lack of completeness I would be reluctant to conclude that they do.
Mr. Justice Lambert then goes on to describe how, because the two Acts "leave a gap", resort to the Lands Clauses Act is required to fill that gap and complete the scheme for the recovery of compensation. If, of course, Mr. Justice Lambert is correct that there is a general rule in favour of compensation which is violated by the "gap" created by the omission to give compensation for injurious affection, then his approach of reading all three statutes together to form the complete scheme is persuasive. However, it seems to me that the general rule is one which favours compensation for expropriation and that it does not extend to injurious affection simpliciter.
24. Where expropriation or injurious affection is authorized by statute the right to compensation must be found in the statute. As Lord Parmoor said in Sisters of Charity of Rockingham v. The King, [1922] 2 A.C. 315 (P.C.), at p. 322:
Compensation claims are statutory and depend on statutory provisions. No owner of lands expropriated by statute for public purposes is entitled to compensation, either for the value of land taken, or for damage, on the ground that his land is "injuriously affected," unless he can establish a statutory right.
25. Where land has been taken the statute will be construed in light of a presumption in favour of compensation (see Todd, The Law of Expropriation and Compensation in Canada, pp. 32‑33) but no such presumption exists in the case of injurious affection where no land has been taken (see Todd, supra, at pp. 292 et seq.; Challies, The Law of Expropriation (2nd ed.), pp. 132 et seq.) In such a case the right to compensation has been severely circumscribed by the courts (see The Queen v. Loiselle, [1962] S.C.R. 624) and, although the policy considerations reflected in the restrictive approach to recovery for injurious affection simpliciter have been seriously questioned (see Todd, "The Mystique of Injurious Affection in the Law of Expropriation" (1967), U.B.C.L. Rev.‑‑C. de D. 125), the concern over the indeterminate scope of the liability remains if recovery is permitted for any injury to private land resulting from the non‑negligent, authorized acts of public authorities. It would appear, therefore, that Mr. Justice Lambert was in error in finding a "gap" in the legislation which had to be filled and, to the extent that he relied on a presumption in favour of recovery for injurious affection simpliciter to get to his result, his reasoning may be viewed as circular. Having said that, it does not follow, of course, that the result he reached is wrong.
26. One thing seems perfectly clear, namely that the Park Act itself contemplates the payment of compensation only in the case of expropriation. Indeed, recourse to the Highways Act depends under s. 11(c) on an expropriation having taken place. Section 11(c) of the Park Act, in other words, seems to have the effect of negating in the case of a park whatever compensation might be recoverable under the Highways Act for injurious affection simpliciter. By the same token the Lands Clauses Act obviously has very wide application by its own terms and prima facie could apply to a park. The question therefore is: can s. 4 of the Lands Clauses Act apply in the face of s. 11(c) of the Park Act which provides for compensation only in the case of expropriation?
27. I state this as being the issue in preference to Mr. Justice Lambert's statement of the issue. He sees the issue as being whether compensation for injurious affection is impliedly excluded by the combination of the Park Act and the Highways Act. I believe the Highways Act is irrelevant where there is no expropriation. It simply does not apply. The question then is whether the Lands Clauses Act can be used to supplement the relief given in the Park Act by providing compensation where no compensation is available under the Park Act itself.
28. It seems to me that the Lands Clauses Act was intended to supplement other statutes and indeed in s. 4 provides for its incorporation into other statutes provided those other statutes authorize the purchase or taking of land for an undertaking. The only ambiguity, in my view, is as to whether the legislature meant what it said. Is it enough that the other statute authorizes the purchase or taking even if no purchase or taking in fact occurs? Or is it implicit in s. 4 of the Lands Clauses Act that the power has been exercised and there has been a purchase or taking so as to provide a foundation for the claim to compensation?
29. I think this ambiguity should be resolved in favour of the claimant. I would therefore find that where there had been no expropriation under s. 11(c) of the Park Act so that the Highways Act, including s. 18(3), does not apply, s. 4 of the Lands Clauses Act by its terms operates to provide compensation for injurious affection in the absence of expropriation. I do not rely for this result on the "gap" theory espoused by Mr. Justice Lambert because I believe the principle on which he founds the theory is "no expropriation without compensation", not "no injurious affection without compensation". I think the vice aimed at is expropriation without compensation. Injurious affection to property frequently goes uncompensated; zoning is perhaps the commonest example.
(d) Expropriation or Injurious Affection
30. Although compensation may be available to the respondents whether their interest has been expropriated or merely injuriously affected, the questions posed in the special case require a determination as to which we have in this case. The procedure and quantum may also differ depending upon the proper analysis.
31. In my view, this is a case of expropriation under s. 11(c) of the Park Act to which the Highways Act applies. I reach this conclusion on the basis that the absolute denial of the right to go on the land and sever the minerals so as to make them their own deprives the respondents of their profit à prendre. Their interest is nothing without the right to exploit it. The minerals in situ do not belong to them. Severance and the right of severance is of the essence of their interest.
32. The main thrust of the Crown's argument is that regulation and expropriation are two different things and that what we have here is simply regulation. The Crown has support for this submission in the reasons of the learned trial judge who analogized the refusal of the permit to the down‑zoning of property; both may cause loss in the form of devaluation of the property but neither results in an expropriation or gives a right to claim compensation.
33. The Crown submits further that because the interest conveyed to the respondents was made subject to "the laws for the time being in force respecting mineral claims" they purchased their interest knowing that their surface rights could be subjected to any other use the Crown might wish to make of them. The only way, the Crown submits, that the respondents could have protected themselves against the risk that their right of access would be defeated would have been to purchase the surface rights outright.
34. With respect, I think these submissions proceed from a fundamental misunderstanding of the nature of the respondents' interest. While the grant or refusal of a licence or permit may constitute mere regulation in some instances, it cannot be viewed as mere regulation when it has the effect of defeating the respondents' entire interest in the land. Without access the respondents cannot enjoy the mineral claims granted to them in the only way they can be enjoyed, namely by the exploitation of the minerals. It is, in my opinion, no answer to say that they should have purchased the whole of the surface rights; the only consequence of that would be a greater expropriation. The reality is that the respondents now have no access to their claims, no ability to develop and realize on them and no ability to sell them to anyone else. They are effectively beyond their reach. They are worthless.
35. Counsel for the Crown submits, however, that in order to show an expropriation it is not enough to show that what the Crown did prevented the respondents from realizing on their interest or rendered it worthless. It must be shown that the Crown has appropriated their interest to itself, that the interest which previously belonged to the respondents now belongs to the Crown. According to the Crown, while the respondents may have been denied the use of their surface rights in order to realize on their mineral claims, the Crown has not acquired the minerals encompassed by their claims nor has it acquired the surface rights ancillary to those claims. It seems to me that this Court's decision in Manitoba Fisheries Ltd. v. The Queen, [1979] 1 S.C.R. 101, is a complete answer to that submission.
36. In Manitoba Fisheries the plaintiff had over a period of forty years built up a profitable fish exporting business with a loyal clientele. In 1969 the federal government enacted the Freshwater Fish Marketing Act, R.S.C. 1970, c. F‑13, giving a Crown corporation the exclusive right to engage in interprovincial fish marketing. This put the plaintiff out of business and it sued for compensation. It was argued by the Crown that, while the new legislation