Abbott v. Canada

Abbott v. Canada
Court (s) Database
Federal Court Decisions
Date
2001-03-26
Neutral citation
2001 FCT 242
File numbers
T-1168-96
Notes
Reported Decision
Decision Content
Federal Court Reports Abbott v. Canada (T.D.) [2001] 3 F.C. 342
Date: 20010326
Docket: T-1168-96
Citation: 2001FCT242
BETWEEN:
ALLISON G. ABBOTT, MARGARET ABBOTT
and MARGARET ELIZABETH McINTOSH
Plaintiffs
- and -
HER MAJESTY THE QUEEN
Defendant
- and -
CANADIAN PACIFIC HOTELS CORPORATION
Intervenor
REASONS FOR ORDER
MR. JOHN A. HARGRAVE,
PROTHONOTARY
[1] This action by representative Plaintiffs initially arose out of various leases granted to Riding Mountain National Park cottages owners. The Crown, to put the simplest face on the action, seeks to set aside as void various leases saying, in effect, that for some sixty years the Crown, mistakenly and improperly, granted leases with rights of renewal and thus, subject to the doctrine of severability, the leases are null and void.
[2] The action took on a broader aspect with the intervention of Canadian Pacific Hotels Corporation ("CP Hotels"), who hold leases, some going back to the 1890s, with rights of renewal, at Lake Louise and in Banff National Park.
[3] In the hope of avoiding an extensive trial, the Defendant seeks determination of two points of law:
1. Did the Defendant have legal authority to grant the Plaintiffs leases containing perpetual renewal clauses at the time such leases were granted?
2. If the Crown had no legal authority to grant the Plaintiffs leases containing perpetual renewal clauses at the time such leases were granted, is there a basis at law as disclosed in the Amended Statement of Claim available to the Plaintiffs in relation to the perpetual renewal clauses as against the Defendant, based on the course of conduct of the parties in relation to the leases since their original granting?
The answer to these questions will also impact on the position of the Intervenor, CP Hotels, the holder of highly developed leased land at Banff and at Lake Louise. The determination begins with consideration as to precisely what legislation, acts, and regulations were in effect governing the lease granting powers of the Crown. However, before considering these questions, both of which I answer affirmatively, I will set out some of the background and touch upon some pertinent case law.
BACKGROUND
[4] By way of background I will begin chronologically first referring to legislation affecting CP Hotels and then to legislation affecting both CP Hotels and the Plaintiffs. In 1892, 1893 and 1906, the Canadian Pacific Railway Company (The "CPR"), predecessor to the Intervenor, CP Hotels, entered into four leases of land. This land was part of an area which had been set aside as a "public park and pleasure ground", known as the Rocky Mountain Park of Canada, pursuant to the Rocky Mountain Park Act of Canada of 1887, 50-51 Victoria, c. 32. Regulations, pursuant to the Rocky Mountain Park Act of 1887 were adopted by Order in Council of 32 June 1890.[1]
[5] The Rocky Mountain Park Act of 1887, section 4, put the control and management of the park under the Minister of the Interior, with the Governor in Council to make regulations. Section 4(c) allowed the Minister of the Interior and the Governor in Council to make regulations for various purposes including, as set out in 4(c):
"The lease for any term of years of such parcels of land in the park as he deems advisable in the public interest, for the construction of buildings for the ordinary habitation and purposes of trade and industry, and for the accommodations of persons resorting to the park;"
[6] A 30 June 1890 Order in Council, being the regulations pursuant to the Rocky Mountains Park Act, provided, among other things, for leases not exceeding forty-two years, with the right of renewal, at rentals to be, from time to time, fixed by the Minister:
14. The Minister of the Interior shall have power to cause such portions of the Park as from time to time he may designate to be surveyed and laid out in building lots, for the construction thereon of buildings for ordinary habitation and purposes of trade and industry, and for the accommodations of persons resorting to the Park, and may issue leases for such lots for any term, not exceeding forty-two years, with the right of renewal, at rentals to be, from time to time, fixed by him; also to set apart such portions of the Park as he may think proper for the sites of market-places, jails, court houses, places of public worship, burying-grounds, benevolent institutions, squares and for other similar public purposes.
[7] The initial four leases entered into by the CPR, between 1892 and 1906, are referred to by the parties as group one leases. They were pursuant to the 30 june, 1890 Order in Council, which specifically provided for renewal of the leases.
[8] Group two consists of a 1 January 1911 lease granted to the Canadian Pacific Railway Company and is pertinent to the Lake Louise operation of CP Hotels. This lease was under the authority of the Dominion Forest Reserves and Parks Act of 1911, 1-2 Geo. V. c. 10. Earlier regulations of 1909, P.C. 1340, were re-established pursuant to an Order in Council of 6 June 1911, being the regulations under the Dominion Forest Reserves and Parks Act. Rather than set out this material, I will merely note that section 18(2) of the Dominion Forest Reserves and Parks Act and section 2 of Order in Council PC 1340 are essentially the same as set out in the Rocky Mountain Parks Act of 1887 and the related Order in Council of 30 June 1890. Thus, there was a right of renewal by regulation.
[9] The third category consists of a lease of 2 April 1948, pursuant to the National Parks Act, S.C. 1930, c. 33, a lease that has been renewed and is still in force at the present time. A second lease in this group is that of 25 June 1952, when the National Parks Act of 1930 as amended, was in force. The National Parks Act of 1930[2] (the "Parks Act of 1930") allows the Governor in Council to make regulations for the granting of leases in town sites for the purpose of residence and trade. Order in Council PC 5045, of 8 December 1947, provides that leases may be issued by the Minister for any term not exceeding forty-two years. This lease relates to Banff and was initially in the name of Brewster Transport Company Ltd. as lessee.
[10] There is a fourth category of CPR Lease, being one entered into 20 August 1956, to Canadian Pacific Railway Company, entered into while the National Parks Act, R.S.C. 1952 c. 189, as amended S.C. 1953 c. 6 was in force. The relevant Order in Council is PC 1954-1918, of 8 December 1954. The terms in the Nation Parks Act of 1952 are essentially those in the National Parks Act of 1930 and the Order in Council of 8 December 1947, PC 5045, with the 1952 Act and 1947 Regulations being slightly broader.
[11] All of the leases in the foregoing four categories, which are presently held by CP Hotels, initially contained perpetual renewal provisions.
[12] As to the leases referred to by the Plaintiff, leases in Riding Mountain National Park, all were granted between 1934 and 1959 each being for the forty-two years and each containing a perpetual renewal provision. The Plaintiffs submit that the first piece of legislation bearing on their claim is the Dominion Forest Reserves and Parks Act of 1911[3]. The applicable regulations under the 1911 Act are orders in council P.C. 2028 (8 August, 1913) amended by P.C. 1935 (20 April 1916), P.C. 675 (26 March 1918), P.C. 674 (29 March 1919), P.C. 1553 (11 August 1927) and P.C. 890 (29 May 1929). Also referred to, but irrelevant so far as the Plaintiffs are concerned, is P.C. 1340 of 21 June, 1909, being regulations passed under the Rocky Mountains Park Act. Finally, there is the Parks Act of 1930, section 9(1) of which continues all regulations made under the Dominion Forest Reserves and Parks Act, which would include P.C. 2028.
[13] Section 7(1) of the Parks Act of 1930 provides that the Governor in Council may grant leases including those for the purpose of residence. Nothing in that Act prohibits the grant of a perpetually renewable lease.
[14] P.C. 2028, referred to above and continued by the Parks Act of 1930, authorizes the Minister of the interior to lease summer resort lots and by section 64, subsection (c) of the Conditions governing leases, the Minister may grant leases of forty-two years duration, "...renewable in like periods at a rental to be fixed by the Minister". Subsequently, Order in Council P.C. 1452 of 23 June 1930, sought to harmonize the regulations in existence. P.C. 1452 rescinded or amended various Orders in Council, but does not refer to P.C. 2028 as either rescind or amended. Also important here is that P.C. 1452, enacted under the Rocky Mountain Parks Act and applicable only to Yoho Park, Glacier Park, Jasper Park and Elk Island Park, does not diminish the authority of the Minister granted by Order in Council 2028, promulgated under the Dominion Forest Reserves and Parks Act of 1911. P.C. 2028, which may have been repealed at a date after the last lease in issue was granted, is one foundation of the position of both Plaintiffs and Intervenor: as pointed out by Driedger on the Construction of Statutes, 1994, Butterworths, Toronto, and leaving aside for the moment the concept of implied repeal, "a statute is not repealed, nor does it expire, through the passage of time or lack of use or by reason of obsolescence." (page 492) and that "In other words, the repeal of an enactment does not destroy any right, privilege, obligation or liability arising under the repealed enactment..." (Page 526), referring to section 43 of the Interpretation Act.
[15] A more recent piece of legislation is P.C. 5045 of 8 December 1947, under the Parks Act of 1930. Section 6(1) of those Regulations provides that "leases for lots in town sites and sub-divisions may be issued by the Minister for any term not exceeding forty-two years". That section goes on to provide that "all lease and licence forms shall be approved by the Deputy Minister of Justice".
[16] The next legislation referred to is P.C. 1918 of 8 December 1954, which revoked P.C. 5045. Section 3(1) of P.C. 1918 provides that:
Where the value of a lot in a town site or sub-division is less than five thousand dollars, a lease of such lot for any term not exceeding forty-two years may be issued ... by the Minister; ...
All lease and licence forms are to be approved by the Minister: section 3(3). P.C. 1100, of 1958, amended section 3(1) of P.C. 1918 to make it clear that the value of $5,000.00 referred to land value only.
[17] Here I would again note that the leases at issue, from the point of view the Plaintiffs, were made between 1934 and 1959. The final lease to the Canadian Pacific Railway Company was granted in 1956. Thus it is not necessary to consider regulations enacted after 1959, for the Supreme Court of Canada, in The Queen v. Walker[4], made it clear that Regulations passed after a lease has been granted cannot retroactively modify or take away terms already created and embodied in such a lease: see page 667 of Walker, where Mr. Justice Martland adopted a passage from In re: Athlumney[5]:
Perhaps no rule of construction is more firmly established then this - that a retrospective operation is not to be given to a statute so as to impair an existing right or obligation, otherwise then as regards matters of procedure, unless that effect cannot be avoided without doing violence to the language of the enactment.
Mr. Justice Wright, in Athlumney, went on to add:
If the enactment is expressed in language which is fairly capable of either interpretation, it ought to be construed as prospective only. (loc cit)
In The Queen v. Walker, Mr. Justice Martland went on to note that the Parks Act of 1930 and applicable Regulations did not purport to take away and ought not to be construed so as to take away rights which respondent lessees of parks land already held. I will now turn to my analysis, beginning with an overview of the position taken by the Crown as to its ability to enter into the leases with both the Plaintiffs and the Intervenor, CP Hotels: the Defendant says that it did not have the ability to enter it into leases with perpetual renewal clauses after 1930.
ANALYSIS
[18] The Crown submits that regulations in force before 1930 provided for renewal terms, yet subsequent legislation limited the ability of the Crown to offer renewal terms and the regulations from time to time in force made no provision for granting renewal terms. Here I would note that neither the legislation nor the regulations prohibit renewal terms, but rather, contrary to earlier legislation and regulations, renewal was not touched upon in the Parks Act of 1930. Counsel for the Crown submits that the Parks Act of 1930 should be looked upon as purposive, restrictive and mandatory, requiring that park lands be left unimpaired and not disposed of, thus drawing the conclusion that perpetual renewal rights in leases of lands in National Parks is offensive to and outside the statutory restrictions on those lands and has been since 1930. The Crown conceded, during argument, that many may be prejudiced if the renewal provisions are held improper, however, in the Crown's view, there is no cure for this, not even a course of conduct. The leases, in the Crown's view, are null, void and of no force or effect. As we shall see this goes too far.
First Question of Law
[19] Turning specifically to the first question, it is whether the Defendant had the legal authority to grant leases to the Plaintiffs which contained perpetual renewal clauses at the time the leases were granted.
[20] The leases in Riding Mountain National Park, which area had been proclaimed a Dominion Park in 1930, were made at various times between 1934 and 1959. Thus, in the view of the Crown, it is the Parks Act of 1930 which applies. Counsel refers to several passages from the Parks Act of 1930:
4. The Parks are hereby dedicated to the people of Canada for their benefit, education and enjoyment, subject to the provision of this Act and Regulations, and such Parks shall be maintained and made use of so as to leave them unimpaired for the enjoyment of future generations.
6.(1) Lands within the Parks shall not be disposed of or be located or settled upon, and no person shall use or occupy any part of such lands, except under the authority of this Act or Regulations made here under.
7.(1) The Governor in Council may, from time to time as he deems expedient, make Regulations for, -
(g) the granting of leases for lots in town cites for the purpose of residence and trade; the granting of licences for lands outside town cites only for the entertainment of persons visiting the Parks; ...
The Parks Act of 1930 did not consider the renewal of leases.
[21] Next, counsel for the Crown submits that Order in Council, P.C. 1452 of 23 June 1930, replaces section 2 of P.C. 1340 of 1909, which clearly granted a right of renewal. Order in Council P.C. 1452 merely gave the Minister of the Interior the right to "...issue leases for such lots for any term not exceeding forty-two years..." This clearly overlooks the initial effect of Order in Council P.C. 2028 of 8 August 1913 and the continuing effect that Regulation had, bearing in mind that it was certainly not rescinded by Order in Council P.C. 1452 in June of 1930.
[22] Next, the Defendant sets out a passage from Order in Council P.C. 5045 of 8 December 1947, which revokes P.C. 1340 which had been re-established by Order in Council P.C. 1336 of 1911 and amended by P.C. 1452. The passage, section 6(1), allows the Minister to lease lots and town sites and sub-divisions for a terms not exceeding forty-two years. The Defendant points out the obvious, that the amendment does not impact, one way or another, on the Crown's ability to enter into leases. Interesting is that fact that P.C. 5045 specifically revoked a number of Orders in Council, some pre-dating and other post-dating P.C. 2028, but did not revoke P.C.. 2028, the provision which allowed the renewal of leases.
[23] The Crown referred to an Act to amend the National Parks Act, S.C. 1950, c. 45, which amends the Parks Act of 1930. The amending Act defines public lands and provides, in section 6(1) that:
Public Lands within the Parks shall not be disposed of or located or settled upon, and no person shall use or occupy any part of such lands, except under the authority of this Act or Regulations made hereunder.
The amending Act goes on to provide for the grant of leases in parks, but again does not touch upon renewability. The Crown makes the point that these amendments had no impact on continuing restrictions on the Crown's ability to enter into leases: the other side of the coin is that the restrictions, whatever they were, may not have been as extensive as the Crown would like to believe.
[24] In due course, P.C. 5045 was revoked, P.C. 1918 of 8 December 1954, providing in part that the Minister, or an officer of the Department of Northern Affairs and National Resources, on behalf of the Minister, might grant a forty-two year lease in a town site or sub-division where the value of the lot was less than $5,000.00. This provision was clarified by Order in Council 1100, of 7 August 1958, which makes it clear that the $5,000.00 restriction on leasing refers to the value of a lot, exclusive of buildings and improvements.
[25] Finally, the legislation came full circle when, on 1 March 1962, the federal government enacted by Order in Council P.C. 268: P.C. 1918, as amended by P.C. 1100, was thereby further amended with various sub-sections of the National Parks general regulations being revoked and the Minister being allowed in certain circumstances, to grant an option to renew for a further 21 years:
1. Subsection (1) and (2) of section 3 of the National Park General Regulations are revoked and the following substituted therefor:
"3.(1) the Minister of an officer of the Department of Northern Affairs and National Resources authorized by the Minister may grant a lease for any term not exceeding forty-two years, with an option to renew for a further term not exceeding twenty-one years, of
(a) a lot situate in a townsite for one or more of the purposes of residence, trade, schools, churches, hospitals or laces of entertainment;
(b) a lot situate in a subdivision other than a townsite for the purpose of residence during the period beginning on the first day of April and ending on the thirty-first day of October in each year; or
...
if the value of the lot or parcel of land, exclusive of buildings and other improvements, is less than five thousand dollars.
[26] The Crown submits that since 1962 there have been numerous regulations restricting the Crown's ability to lease lands and that none of these contained an express reference to a renewal period. However, I take it that none of these regulations, which were referred to in the abstract, specifically bars a renewal of a lease. The Crown makes the point that none of the post 1962 regulations cures what the Crown looks upon as an illegality in the granting of a perpetual renewal clauses.
[27] The Crown then continues with a submission that where legislation or regulation expressly or impliedly touches upon the Crown's power to contract, all of the statutory conditions must be observed, the power to contract being no broader than contemplated by the Statute: in effect, to paraphrase the Crown's position, a mere reference to leasing does not give authority to grant a renewal of a lease. The Crown refers to various authorities for this proposition. The first in time is Montreal Trust Co. v. Canadian National Railway[6], a decision of the Privy Council. That case involved a specific statutory prohibition rendering a contract with the Crown void and of no effect. Important here is the fact of the explicit prohibition: in the present instance there is no specific statutory prohibition against granting a renewal of a lease.
[28] The Crown also refers to J.E. Verreault and Fils Ltée v. Attorney General of Quebec[7]. There the legislation at issue was not restrictive, but rather it was an enabling statute. There being no prohibition providing that the Deputy Minister might not sign a contract on behalf of the Minister, the contract fell within the general principles of contract and was valid. If anything the case favours the present Plaintiffs, for none of the legislation referred to by the Defendant Crown in argument or in written material prohibits the granting of an extension to leases. But, important here, is that in Verreault the Supreme Court of Canada meant to depart from the conventional legal wisdom when it held that by general rules of mandate, including those of apparent mandate, a Minister had authority to bind the Crown in contract unless restricted by statute. The next case which touches this proposition is The Queen v. CAE Industries Ltd.[8]
[29] In CAE Industries the Crown was held bound by a contract entered into by three Ministers who had either actual or ostensible authority to bind the Crown. Certainly in CAE Industries Mr. Justice Stone, writing for the majority, referred to a number of decisions supporting the proposition that where a statute regulates the power to make a contract, a contract does not come into existence unless the requirements of the statute are met. Yet the case was decided on the basis that there was no statutory restriction and thus the contract, which the Crown sought to set aside, was valid because the contract fell within the general responsibility of the Ministers in questions. Again, this case does not help the Crown in the present instance, for there is no express restriction on the ability, in signing a lease, to grant a right of renewal.
[30] The final case which I will touch upon, also referred to by counsel for the Crown, is The Queen v. Walker[9], the issue being rights of renewal under leases of land in Jasper National Park. There the Crown took the position that since authority did not exist, by statute at the time of the renewal of the leases, the leases were void. Mr. Justice Martland, writing for the majority, noted that absence of any clear statutory authority by which to evade an obligation under the leasing contract. The Crown had apparently argued that while the initial leases were entered into at a time when renewals were the norm, it was not bound to renew when there was not specific authority to grant a renewal when the renewal was sought. Mr. Justice Martland, in writing for the majority, summed the matter up as follows:
...the appellant's submission in reality is that if the Crown enters an agreement, executed on its behalf by an agent, to do something in the future, the Crown ceases to be obligated to perform its covenant if, at the time of performance, the agent then lacks authority to do that which had been promised. In my opinion, such a contention cannot be sustained. The Crown, just as much as individuals, is obligated to perform its contracts, such obligation may be discharged by appropriate Statutory provisions, but in the absence of clear statutory authority, it cannot evade that obligation. The obligation is not to be avoided merely because the power of the Minister to make new leases is less broad than it was when the original lease was made. (Page 665)
This, as we shall see, certainly assists the Plaintiffs and the Intervenor. However, Mr. Justice Martland, in Walker, also comments further:
In the present case there is no statutory prohibition which prevents the appellant from performing its obligation. The situation is only that, as to the granting of new leases, the powers of the Minister had been defined in terms less broad than before. (Page 666).
Indeed, Walker favours the Plaintiffs in that the majority felt that the Parks Act of 1930 and Regulations and limitations thereby imposed, ought not to be construed to apply retroactively or be construed so as to take away rights already granted to lessees (Page 667).
[31] The Crown's submissions are to the effect that section 6 of the Parks Act of 1930 and the Regulations thereunder govern the disposition of parks lands, a lease being a disposition. The Crown then submits that such disposition must be, in the words of the various regulations since 1930, "...for a term not exceeding forty-two years". Further, the word "term" is said not to include a renewal term. The Crown then argues that the wording of the Parks Act of 1930 and contemporary regulations is restrictive and mandatory particularly in that the wording granting a lease for a term of forty-two years has changed from that in earlier legislation which clearly allowed renewals. Thus, it is said, that where Parliament is silent as to renewals, no renewal is intended to be available.
[32] The Crown then goes on to say that a perpetual renewal situation is contrary to section 4 of the Parks Act of 1930, for all lands "shall be maintained and made use of so as to be them unimpaired for the enjoyment of future generations". The Crown emphasizes the word "impaired" and submits that a perpetual lease is not reconcilable with this requirement. While this requirement might also be interpreted to prevent the granting of any lease, the better view is that the Parks Act of 1930 and legislation sets out certain standards, the breach of which results in an impairment and which either requires rectification, or could result in a cancellation of a lease. In effect, the purpose of the parks legislation is sufficiently served by the provisions and penalties in the Statutes and Regulations, for example, the Regulations made under section 7 of the Parks Act of 1930, which provides for the administration, protection, control, management and protection of parks and their resources and the prevention of nuisance in the parks and by the penalty provisions in the Act. To borrow a concept from Lord Justice Devlin in Archbolds (Freightage) Ltd. v. S. Spanglett Ltd.[10], a very appropriate concept in the present instance, "...the avoidance of the contract would cause grave inconvenience and injury to innocent members of the public without furthering the object of the statute.": there he was of the view that the purpose of the statute was sufficiently served by the penalties prescribed in the Statute.
[33] The Crown's argument concludes that since the issuing of leases with a perpetual renewal clause was contrary to statutory restrictions after 1930, accordingly these leases are null, void and unenforceable.
[34] To espouse the Crown's view as to the leases of both the Plaintiffs and the Intervener, CP Hotels, are null and void, or that there is no right of renewal, leads to a commercially absurd result and indeed to a result which would deprive users of the parks including those members of the public who from time to time use the facilities at Banff and at Lake Louise, of the ability to enjoy the parks at all. This is because, if leases were for a term of only forty-two years, no substantial business enterprise would be interested in putting in facilities and amenities worthy of the parks in question and attractive to the public. In the result, if leases to responsible leaseholders were too short for economic viability, the Crown would not be fulfilling its mandate to make the parks available to the public for their benefit, education and enjoyment. Rather, the Crown would be maintaining the parks in a pristine state, undisturbed by either development of substance or the people of Canada, a result inconsistent with the Crown's mandate, and indeed an absurd result.
[35] The modern view of avoiding an absurdity is summarized by Driedger on the Construction of Statutes, supra, at pages 85 and 86, however I will paraphrase Driedger's four points. First, is a presumption that legislation is not intended to produce absurd consequences. Second, absurdity includes violation of reasonableness, common sense and other public standards and includes not only the shocking or unthinkable, but also consequences judged unreasonable because they are contrary to what the Court believes are important values and principles. Third, one should prefer an interpretation of legislation which avoids absurd consequences, even to the extent of rejecting the ordinary meaning of words, if that route leads to absurdity. Finally, within the bounds of plausibility, the more compelling the reason for avoiding an absurdity, the greater the allowable departure from the ordinary meaning of words in a statute.
[36] To these four principles I would add a general rule pointed to by Mr. Justice Martland in The Queen v. Walker, supra, at page 662: that the Crown may not impeach its own act where there are two sets of regulations, one proper and one improper, under which the Crown might have acted, for the Crown's honour and for the benefit of the subject, the applicable construction is the one which will uphold the Crown's intent to make a good and proper grant. Indeed, Mr. Justice Martland here refers to the case of the Churchwardens of St. Saviour in Southwark[11], a decision of Lord Justice Coke, at page 1027:
But if two constructions may be made of the King's grant, then the rule is, when it may receive two constructions, and by force of one construction the grant may be according to the rule of law be adjudged good, and by another it shall adjudged void: then for the King's honour, and for the benefit of the subject, such construction shall be made, that the King's charter shall take effect, for it was not the King's intent to make a void grant; and therewith agrees with Sir J. Molin's case in the Sixth Part of my Report.
The language used in this passage by Lord Coke, a learned and practical man whose influence has been enormous in establishing the form and development of the common law, is from the age of Shakespeare, but the concept is not dated.
[37] There are two approaches by which I may confirm the legal authority of the Crown to grant the leases to the Plaintiffs containing perpetual renewal clauses. The first approach, suggested by the Plaintiffs, involves The Queen v. Walker, supra, and the regulations put into effect by P.C. 2028, which provides for forty-two year leases "renewable in like period".
[38] While many of the regulations dealing with parks and forest reserves, promulgated in the nineteen hundreds, were shown to me as being specifically revoked, no one was able to refer me to anything which suggest that P.C. 2028, of 13 August 1913, pursuant to the Forest Reserves and Parks Act, c. 10, S.C. 1911, was ever revoked. I would specifically note that the Forest Reserves and Parks Act applied to various blocks of land, including what is now Riding Mountain National Park and to the Rocky Mountain Park of Canada and that by section 18(2)(section 21 of 1927 R.S.C. c.78) the Governor in Council was given authority to make regulations for leases for various purposes including for the construction of buildings for ordinary habitation, accommodation, trade and commerce. I would also repeat that regulations enacted after 1959, a date on which the last of the leases at issue was granted, have no bearing upon leases already granted, for the Parks Act of 1930 and regulations "...are not to be construed be as applying retrospectively so as to take away rights already created." (Walker; supra, at page 667).
[39] I earlier referred to the concept of an implied repeal of a statute. This is an appropriate point at which to put that concept to rest. Driedger on the Construction Statutes, supra, points out that where there is subsequent legislation there is no implied repeal unless the continued operation of both provisions is judged to be impossible or otherwise unacceptable. While there may in some instances be a doctrine paramountcy, a ranking of legislation with subsequent legislation outranking earlier inconsistent provisions, the usual practice in Canada is to repeal legislation through the enactment of highly stylized provisions: "repeal by implication is wholly inconsistent with ...[Canada's] ... approach to statute law." (Driedger, supra, at 496). In the present instance, the legislation, statutes and regulations, past and present, are not incompatible. One set of legislation allows renewal of leases and the other is silent. Thus the operation of both provisions is neither impossible nor otherwise unacceptable[12]
[40] The majority reasons in The Queen v. Walker, supra, are also on point and good authority for finding that P.C. 2028 of 1913, section 64 of which authorizes forty-two year leases with renewals for like periods, is applicable. P.C. 2028 authorizes the issuance of leases with continuous renewals and so provides the authority for the present leases to the Plaintiffs at least until 1947. Those leases granted between 1947 and 1959 are also valid because the regulations then in effect, P.C.5045, provided for ministerial approval of the form of the leases: there is no suggestion by the Crown that the leases granted during this period, containing perpetual renewal clauses, were not properly approved. All of this requires further explanation.
[41] The general starting point of the Plaintiffs rests upon the proposition that the Crown, subject to statute or regulation limiting its powers, has the power and capacity of a natural person and cannot, relying upon its status as the Crown, avoid liability under an otherwise valid contract: see Bank of Montreal v. Attorney General of Quebec[13]. This capacity and inability to void validly made contracts is accompanied by case-law to the effect that the Crown has a general authority to contract, unless that power is specifically limited by statute. This is the general proposition that comes out of J.E. Verreault et Fils Ltée v. Attorney General of Quebec[14] considered and commented upon, for the majority, by Mr. Justice Stone in The Queen v. CAE Industries Ltd., supra, at 165:
I am satisfied that by its decision in Verreault the Supreme Court of Canada meant to depart from what been regarded as conventional legal wisdom, namely, that a Minister of the Crown has no authority to bind the Crown in contract unless the authority to do so exist under a statute or an order in council. I understand that case to hold that by the general rules of mandate, including those of apparent mandate, a Minister of the Crown as head of a government department has authority to bind the Crown in contract unless that authority is restricted by or pursuant to statute.
Thus, the present issue becomes whether there is any provision in the Parks Act of 1930, the legislation then in force, or under any regulations made under that Act, which limits the Crown's power to contract and specifically to grant perpetually renewable leases.
[42] The Parks Act of 1930 prohibits the disposition, locating on, settling upon or use or occupancy except pursuant to the Act and regulations. Section 7(1) provides, in part, that the Governor in Council may from time to time make regulations for:
(g) the granting of leases for lots in town cites for the purpose of residence and trade; ...
Particularly pertinent is section 9(1) of the Parks Act of 1930 which preserves former regulations, which would include P.C. 2028 of 8 August 1913:
All of the regulations made by the Governor in Council under the provisions of the Rocky Mountain's Park Act or the Dominion Forest Reserves and Parks Act in force at the time of the passing of this Act shall continue in force until repealed.
Here I would note that P.C.1340, referred to in the argument of the Defendant, from time to time and as amended, was issued not under the Dominion Forest Reserves and Parks Act, the relevant legislation so far as the Plaintiffs are concerned, but rather under the Rocky Mountain's Park Act. Thus, we are left with P.C.2028 to provide the operative regulations. Section 64 authorizes the Minister the lease lands for summer resort lots and specifically, by section 64(c), to grant leases for forty-two years with similar renewal periods:
Leases for building lots within duly established summer resorts, on such form as is approved by the Minister, may be granted for a period of forty-two years renewable in like periods at a rental to be fixed by the Minister.
This provision makes it clear that there may be more than one renewal.
[43] I would again note that regulations, contemporaneous with the Parks Act of 1930, being P.C. 1452, rescinded or amended various Orders in Council, but P.C. 2028 was neither rescinded nor amended. However, Order in Council P.C. 1452 is pertinent to some degree.
[44] Order in Council P.C.1452 of 23 June 1930, after rescinding various sets of regulations, added to the general regulations under the Parks Act of 1930 a provision allowing the Minister of the interior to "...issue leases of such lots for any term not exceeding forty-two years...". This amendment does not diminish the authority of the Minister under P.C.2028, for those regulations were pursuant to the Dominion Forest Reserves and Parks Act, which applied to all parks, while the general regulations, Order in Council P.C. 1452, were pursuant to the Rocky Mountain's Parks Act and had effect, according to the preamble of that Order in Council, only as to the Rocky Mountain's Park of Canada, Yoho Park, Glacier Park, Jasper Park and Elk Island Park.
[45] To sum up the situation at this point, as of the Parks Act of 1930 and continuing at least until the enactment of regulations in 1947, P.C. 2028 remained in force and authorized multiple terms of renewal of forty-two years. Further, nothing in the Parks Act of 1930 prevented the Crown from granting perpetually renewable leases.
[46] P.C. 2028 was perhaps never rescinded. However counsel for the Plaintiff, quite properly, brings to my attention P.C. 5045 of 8 December 1947, regulations pursuant to the Parks Act of 1930, which again revokes various other regulations and goes on to provide in section 6(1) that the Minister may lease lots and town cites and sub-divisions "...for any term not exceeding forty-two years". Under section 6(3) of that regulation the form of leases are to be approved by the Deputy Minister of Justice. This regulation was in turn rescinded in 1954 by P.C. 1918 which touched upon leases of lots in town cites or sub-division of a value less than five thousand dollars, which may be leased by the Minister, or an officer of the Department of Northern Affairs and National Resources on behalf of the Minister pursuant either to general or specific authority, with lease forms to be approved by the Minister: see sections 3(1) and (3).
[47] As already noted, the leases to the Plaintiff were made between 1934 and 1959 and to the Intervenor as late as 1956: the Supreme Court of Canada, in The Queen v. Walker, supra, made clear that regulations passed after the granting of a lease do not retroactively modify the terms of such leases. Thus, I do not need to consider the effect of the 1962 amendments embodied in P.C. 268, amending P.C. 1918, to allow a 21-year renewal of a lease.
[48] The Plaintiffs and the Intervenor point out that from the plain language of P.C.2028 it is clear that the Minister had express authority to lease lands and that the leases could be renewable. Even if one looks at subsequent regulations, there is authority to the Minister to lease lands, with the form of the leases to be approved by the Deputy Minister of Justice, however nothing in the Parks Act of 1930 or any later relevant regulations indicate what specific provisions must or must not be included in such leases. Here I return to the modern rules as to absurdity, as promulgated by Driedger on the Construction of Statutes and referred to earlier, and to the St. Saviour's decision referred to in The Queen v. Walker, supra. The abs