Ipsofactoj.com: International Cases [2000] Part 3 Case 13 [SCC]


SUPREME COURT OF CANADA

Coram

City of Nanaimo

- vs -

Rascal Trucking Ltd

ARBOUR J

BASTARACHE J

BINNIE J

GONTHIER J

L'HEUREUX-DUBE J

McLACHLIN J

MAJOR J

2 MARCH 2000


Judgment

Major J

  1. This appeal engages an interpretation of s. 936 of the Municipal Act, R.S.B.C. 1979, c. 290 (now R.S.B.C. 1996, c. 323, s. 727). As well, it raises the standard of judicial review applicable to municipal bodies, previously visited by this Court in Shell Canada Products Ltd. v Vancouver (City) [1994] 1 S.C.R. 231.

    IFACTUAL BACKGROUND

  2. The respondent, Rascal Trucking Ltd. ("Rascal"), leased a parcel of land located within the City of Nanaimo ("Nanaimo" or the "City") from Kismet Enterprises Inc. ("Kismet"). In April 1996, Rascal applied for and received a permit from the appellant Nanaimo to deposit approximately 15,000 cubic yards of soil on its site with the intent to conduct soil processing operations, an activity permitted by the applicable zoning classification.

  3. Shortly after Rascal started delivering soil to the site, neighbouring residents raised complaints about dust and noise emissions. A City inspector inspected the site and recommended that an order be issued compelling the owner to remove the pile of soil.

  4. On July 3, 1996, Nanaimo held a public meeting where it heard from local residents and the respondent. It received a professional engineer's report analysing the noise emissions from the property, and an opinion from its legal counsel. The Nanaimo council deliberated and ultimately passed a resolution declaring the pile of soil a nuisance pursuant to s. 936 of the Municipal Act, and ordered Kismet to remove it within 30 days. It did not comply.

  5. On August 19, 1996, Nanaimo passed a second resolution ordering the respondent to remove the topsoil within 15 days, in default of which it would be removed by the city at the respondent's or owner's cost. Neither the owner Kismet nor the respondent Rascal obeyed. On September 6, 1996, Rascal denied access for removal purposes to agents of the City.

  6. These events precipitated two applications before the Supreme Court of British Columbia. Nanaimo brought the first, asking for a declaration that it was entitled to access the property and remove the offending pile of soil. Maczko J. granted the petition on the basis that Nanaimo had the jurisdiction both to declare the dirt pile a nuisance and order its removal.

  7. Kismet and Rascal brought the second petition, requesting that the resolutions be quashed. Rowan J. dismissed the petition.

  8. The British Columbia Court of Appeal allowed Rascal's appeal, set aside the orders and quashed the July 3rd and August 19th resolutions: (1998), 49 B.C.L.R. (3d) 164.

    IIRELEVANT STATUTORY PROVISIONS

  9. Municipal Act, R.S.B.C. 1979, c. 290

    Nuisances and disturbances

    932.

    The council may by by-law ....

    ....

    (b)

    prevent, abate and prohibit nuisances, and provide for the recovery of the cost of abatement of nuisances from the person causing the nuisance or other persons described in the bylaw;

    (i)  

    require the owners or occupiers of real property, or their agents, to eliminate or reduce the fouling or contaminating of the atmosphere through the emission of smoke, dust, gas, sparks, ash, soot, cinders, fumes or other effluvia; and prescribe measures and precautions to be taken for the purpose; and fix limits not to be exceeded for those emissions;...

    Removal of dangerous erections

    936.

    (1)

    The council may declare a building, structure or erection of any kind, or a drain, ditch, watercourse, pond, surface water or other matter or thing, in or on private land or a highway, or in or about a building or structure, a nuisance, and may direct and order that it be removed, pulled down, filled up or otherwise dealt with by its owner, agent, lessee or occupier, as the council may determine and within the time after service of the order that may be named in it.

    ....

    (3)

    The council may further order that, in case of default by the owner, agent, lessee or occupier to comply with the order within the period named in it, the municipality, by its employees and others, may enter and effect the removal, pulling down, filling up or other dealing at the expense of the person defaulting, and may further order that the charges for doing so, including all incidental expenses, if unpaid on December 31 in any year, shall be added to and form part of the taxes payable on that land or real property as taxes in arrear.

    ....

    (5)

    This section applies to any building, structure or erection of any kind which the council believes is so dilapidated or unclean as to be offensive to the community.

  10. Interpretation Act, R.S.B.C. 1996, c. 238

    Enactment remedial

    8.

    Every enactment must be construed as being remedial, and must be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects.

  11. Statute Revision Act, R.S.B.C. 1996, c. 440

    Legal effect of revision

    8.

    (1)

    A revision does not operate as new law but has effect and must be interpreted as a consolidation of the law contained in the Acts and provisions replaced by the revision.

    (2)

    If a revised provision has the same effect as a provision replaced by the revision, the revised provision

    (a)  

    operates retrospectively as well as prospectively, and

    (b)

    is deemed to have been enacted and to have come into force on the day on which the provision replaced by the revision came into force.

    (3)

    If a revised provision does not have the same effect as a provision replaced by the revision,

    (a)

    the provision replaced by the revision governs all transactions, matters and things before the revision comes into force, and

    (b)

    the revised provision governs all transactions, matters and things after the revision comes into force.

    IIIJUDICIAL HISTORY

    A. British Columbia Supreme Court (Maczko J.)

  12. The issue before Maczko J. was whether Nanaimo had the power under s. 936 of the Municipal Act to declare a pile of soil a nuisance and order its removal. He declared that Nanaimo had jurisdiction to do so, but did not extend his order to conclude on Nanaimo's right to do so in the case before him.

    B. British Columbia Supreme Court (Rowan J.)

  13. Rascal and Kismet filed a second petition requesting that the court quash Nanaimo's resolutions on the basis that the city exceeded its jurisdiction by declaring the pile of soil to be a nuisance. Rowan J. held that the pile of soil fell within the traditional meaning of a nuisance, specifically something harmful or offensive to the public for which there is a legal remedy. Therefore, he declined to intervene and quash the City's resolutions, finding it had acted within its jurisdiction.

    C. British Columbia Court of Appeal (per Newbury J.A.)

  14. The Court of Appeal held that Maczko J. erred in declaring Nanaimo had jurisdiction to declare the pile of soil a nuisance and to order its removal. As the ruling of Rowan J. was predicated on the ruling of Maczko J., that too was held to be in error. The court allowed the appeal and quashed the city's resolutions.

    IVISSUES

  15. This appeal raises two issues:

    1. Did s. 936 of the Municipal Act empower the appellant to pass the resolutions declaring the pile of soil a nuisance and ordering its removal?

    2. If so, upon what standard must the appellant's decision be reviewed?

    V. ANALYSIS

    (1) Did s. 936 of the Municipal Act empower the appellant to pass the resolution declaring the pile of soil a nuisance and ordering its removal?

  16. Nanaimo relied upon s. 936 of the Municipal Act as its authority to declare Rascal's pile of soil a nuisance and to order its removal. The appellant submitted that a "broad and benevolent" rule of statutory construction be adopted in ascertaining its jurisdiction under s. 936 rather than the narrow view adopted by the Court of Appeal. Nanaimo argued that s. 936's reference to "or other matter or thing" cannot be limited to the genus of constructed things and watercourses preceding it. To the contrary, Nanaimo said this phrase is meant to stand alone and apart from the preceding items. Therefore, the power to declare "other matter or thing" a nuisance referred to the municipality's jurisdiction to abate nuisances and health hazards generally.

  17. In support of this conclusion Nanaimo pointed out that prior to the 1979 revision of the Municipal Act, the predecessor equivalent of s. 936 (Municipal Act, R.S.B.C. 1960, c. 255, s. 873) contained an additional comma prior to "or other matter or thing", which it was argued was included to set this phrase off as a stand alone grant of general power. Although this comma was removed in the 1979 revision, Nanaimo claims s. 8 of the Statute Revision Act required the Court to interpret s. 936 as if the comma remained, should the inclusion of a comma have the substantive effect of setting off this phrase as a general grant of jurisdiction over nuisances.

  18. The respondent argued that this Court should not subscribe a priori to either a benevolent or strict approach, but rather seek to discern the "true intent" of s. 936. In the respondent's submission, such an analysis, aided by the ejusdem generis or limited class rule, forces the conclusion that s. 936 empowered Nanaimo to address only two classes of potential nuisance - constructed things and things associated with the handling, transit, or storage of water. To ascribe greater meaning to the phrase "or other matter or thing" it was said would run contrary to the intent of listing specific items before it, as well as deprive those words of meaning. In light of the specific items enumerated, the respondent company said it would be anomalous to conclude that reference to "or other matter or thing" permits a municipality to, in effect, declare anything to be a nuisance.

  19. The first step is to consider the approach the courts should take when construing municipal legislation. As noted by Iacobucci J. in R. v Sharma [1993] 1 S.C.R. 650, at p. 668:

    .... as statutory bodies, municipalities 'may exercise only those powers expressly conferred by statute, those powers necessarily or fairly implied by the expressed power in the statute, and those indispensable powers essential and not merely convenient to the effectuation of the purposes of the corporation.'

  20. The process of delineating municipal jurisdiction is an exercise in statutory construction. There is ample authority, on the interpretation of statutes generally and of municipal statutes specifically, to support a broad and purposive approach.

  21. While R. v Greenbaum [1993] 1 S.C.R. 674, favoured restricting a municipality's jurisdiction to those powers expressly conferred upon it by the legislature, the Court noted that a purposive interpretation should be used in determining what the scope of those powers are. See Iacobucci J. (at pp. 687-88):

    As Davies J. wrote in his reasons in City of Hamilton v Hamilton Distillery Co. (1907), 38 S.C.R. 239, at p. 249, with respect to construing provincial legislation enabling municipal by-laws:

    In interpreting this legislation I would not desire to apply the technical or strict canons of construction sometimes applied to legislation authorizing taxation. I think the sections are, considering the subject matter and the intention obviously in view, entitled to a broad and reasonable if not, as Lord Chief Justice Russell said in Kruse v Johnson [[1898] 2 Q.B. 91], at p. 99, a "benevolent construction," and if the language used fell short of expressly conferring the powers claimed, but did confer them by a fair and reasonable implication I could not hesitate to adopt the construction sanctioned by the implication.

    Accordingly, a court should look to the purpose and wording of the provincial enabling legislation when deciding whether or not a municipality has been empowered to pass a certain by-law .... a somewhat stricter rule of construction than that suggested above by Davies J. is in order where the municipality is attempting to use a power which restricts common law or civil rights.

  22. This conclusion follows recent authorities dictating that statutes be construed purposively in their entire context and in light of the scheme of the Act as a whole with a view to ascertaining the legislature's true intent. See Rizzo & Rizzo Shoes Ltd. (Re) [1998] 1 S.C.R. 27, at paras. 21-23, M & D Farm Ltd. v Manitoba Agricultural Credit Corp. [1999] 2 S.C.R. 961, at para. 25, and the B.C. Interpretation Act, s. 8.

  23. It is my opinion that the legislature, by including the phrase "or other matter or thing", did not intend to expand the scope of s. 936 to allow municipalities to declare almost anything to be a nuisance. I accept the respondent's submission that to construe that phrase as creating a third class of potential nuisance would effectively negate the purpose of including rather specific preceding language.

  24. The phrase "or other matter or thing" extends the two classes of nuisances outlined before it, that is constructed or erected things, and watercourses. This interpretation follows from both a purposive interpretation and the application of the ejusdem generis limited class rule. It is not reasonable to believe that the legislature intended to subscribe such importance to the missing comma, namely that such minor punctuation should render null the specific items listed before.

  25. It should also be noted that s. 932 of the Municipal Act (now s. 725) gave municipalities the authority to address nuisances, broadly defined, through duly passed by-laws. Under the Act, the procedure established to pass a by-law is more onerous and time consuming than that required to pass a resolution. Were reference to "or other matter or thing" interpreted to govern nuisances generally, s. 936 would necessarily encompass those nuisances addressed by s. 932. Section 932 would, in practice, be redundant. No reasonable and efficient municipality would address a nuisance through s. 932 in light of the less cumbersome procedure available under s. 936. The legislature could not have intended such redundancy.

  26. The fact that s. 936 empowers municipalities to declare only two classes of thing to be a nuisance does not foreclose the possibility that a pile of soil may fall within one of those categories. It is clear that a pile of soil does not fall within any of the water-related items constituting the second class. However, does a pile of soil fall within the first class of constructed or erected things? Specifically, does it fall within the phrase "building, structure or erection of any kind"? I conclude that it does. A pile of soil does not materialize on its own. It must at least be erected presumably by piling or dumping. As well, a pile of soil clearly may be a "hazardous erection" within the wording of s. 936's heading, either in the sense of reducing air quality through dust pollution, or by posing a serious risk to curious children.

  27. Rizzo & Rizzo Shoes, supra, at para. 27, noted "[i]t is a well established principle of statutory interpretation that the legislature does not intend to produce absurd consequences". In this sense, an absurdity would result if s. 936 did not extend to a pile of soil. It would mean a building, structure or pond could be declared a nuisance, but the soil excavated to create them could not.

  28. It is my opinion that s. 936 empowered the appellant to issue resolutions declaring Rascal's pile of soil a nuisance and ordering its removal. As a result of that conclusion the second question requires review.

    (2) Upon what standard must the appellant's decision be reviewed?

  29. The standard of judicial review applicable to municipal policy making decisions was reviewed and set out in Shell, supra. See Sopinka J. (at p. 273):

    As creatures of statute, however, municipalities must stay within the powers conferred on them by the provincial legislature. In R. v Greenbaum, [1993] 1 S.C.R. 674, Iacobucci J., speaking for the Court stated, at p. 687:

    Municipalities are entirely the creatures of provincial statutes. Accordingly, they can exercise only those powers which are explicitly conferred upon them by a provincial statute.

    It follows that the exercise of a municipality's statutory powers .... is reviewable to the extent of determining whether the actions are intra vires.

  30. In this case we are considering the standard of review applicable to a municipality's adjudicative function as opposed to its policy making. The decision in question was clearly adjudicative as it involved an adversarial hearing, the application of substantive rules to individual cases and a significant impact on the rights of the parties. (See 2747-3174 Québec Inc. v Québec (Régie des permis d'alcool), [1996] 3 S.C.R. 919, at para. 24.) In U.E.S., Local 298v Bibeault [1988] 2 S.C.R. 1048, and subsequent cases, this Court adopted what was described as a "pragmatic and functional" approach to discerning the standards of review applicable to administrative tribunals, be they delegates of federal or provincial jurisdiction. As municipalities are also delegates of provincial jurisdiction, there is harmony in applying the pragmatic and functional approach in ascertaining the standard of review applicable to municipalities exercising an adjudicative function.

  31. As recently noted in Pushpanathanv Canada (Minister of Citizenship and Immigration) [1998] 1 S.C.R. 982, at paras. 29-38, several factors must be weighed in determining whether to afford an administrative tribunal curial deference. The approach is a contextual one that must be adapted to the body in question. It considers, where relevant, the existence of a privative clause, if any, the body's expertise, the purpose of the body's enabling legislation and whether the question at issue is one of law or fact. Here, s. 936 requires the municipal council to apply principles of statutory interpretation in order to answer the legal question of the scope of its authority. On such questions, municipalities do not possess any greater institutional competence or expertise than the courts so as to warrant a heightened degree of deference on review. The test on jurisdiction and questions of law is correctness.

  32. A consideration of the nature of municipal government and the extent of municipal expertise further militates against a deferential standard on the question of jurisdiction. Furthermore, these factors reflect the institutional realities that make municipalities creatures distinct and unique from administrative bodies.

  33. First, in contrast to administrative tribunals, that usually adjudicate matters pertaining to a specialized and confined area, municipalities exercise a rather plenary set of legislative and executive powers, a role that closely mimics that of the provincial government from which they derive their existence. Yet, unlike provincial governments, municipalities do not have an independent constitutional status. See Godboutv Longueuil (City) [1997] 3. S.C.R. 844, at para. 52, and the Constitution Act, 1867, ss. 92(8) and 92(16). While administrative agencies are equally statutory delegates, they are not a substitute for provincial legislative and executive authority to the extent that municipalities are. Municipalities essentially represent delegated government.

  34. Second, municipalities are political bodies. Whereas tribunal members should be and are, generally, appointed because they possess an expertise within the scope of the agency's authority, municipal councillors are elected to further a political platform. Neither experience nor proficiency in municipal law and municipal planning, while desirable, is required to be elected a councillor. Given the relatively broad range of issues that a municipality must address, it is unlikely that most councillors will develop such special expertise even over an extended time. Finally, as opposed to administrative tribunals, council decisions are more often by-products of the local political milieu than a considered attempt to follow legal or institutional precedent. To a large extent council decisions are necessarily motivated by political considerations and not by an entirely impartial application of expertise.

  35. The fact that councillors are accountable at the ballot box, is a consideration in determining the standard of review for intra vires decisions but does not give municipal councillors any particular advantage in deciding jurisdictional questions in the adjudicative context. As a result, the courts may review those jurisdictional decisions on a standard of correctness.

  36. Given the interpretation of s. 936 set out in part 1 of these reasons, it is my opinion that Nanaimo was correct in construing s. 936 as extending to it jurisdiction to issue resolutions declaring Rascal's pile of soil a nuisance and ordering its removal.

  37. In light of the conclusion that Nanaimo acted within its jurisdiction in passing the resolutions at issue, it is necessary to consider the standard upon which the courts may review those intra vires municipal decisions. Municipal councillors are elected by the constituents they represent and as such are more conversant with the exigencies of their community than are the courts. The fact that municipal councils are elected representatives of their community, and accountable to their constituents, is relevant in scrutinizing intra vires decisions. The reality that municipalities often balance complex and divergent interests in arriving at decisions in the public interest is of similar importance. In short, these considerations warrant that the intra vires decision of municipalities be reviewed upon a deferential standard.

  38. Krusev Johnson [1898] 2 Q.B. 91 (Di Ct.), has long been an authority in Canadian courts for scrutinizing the reasonableness of municipal by-laws. There, Lord Russell of Killowen offered the courts some cautionary language on findings of unreasonableness (at p. 100):

    A by-law is not unreasonable merely because particular judges may think that it goes further than is prudent or necessary or convenient, or because it is not accompanied by a qualification or an exception which some judges may think ought be there. Surely it is not too much to say that in matters which directly and mainly concern the people of the county, who have the right to choose those whom they think best fitted to represent them in their local government bodies, such representatives may be trusted to understand their own requirements better than judges.

  39. Or as more recently expressed in Shell, supra, per McLachlin J., at p. 244:

    Recent commentary suggests an emerging consensus that courts must respect the responsibility of elected municipal bodies to serve the people who elected them and exercise caution to avoid substituting their views of what is best for the citizens for those of municipal councils. Barring clear demonstration that a municipal decision was beyond its powers, courts should not so hold. In cases where powers are not expressly conferred but may be implied, courts must be prepared to adopt the "benevolent construction" which this Court referred to in Greenbaum, and confer the powers by reasonable implication. Whatever rules of construction are applied, they must not be used to usurp the legitimate role of municipal bodies as community representatives.

  40. I find these comments equally persuasive in the scrutiny of municipal resolutions. The conclusion is apparent. The standard upon which courts may entertain a review of intra vires municipal actions should be one of patent unreasonableness.

  41. An example of legislative intent in the review of municipal bylaws or resolutions is found in the Province of Alberta where the province seeks to shield it's municipalities from a challenge on unreasonableness alone. See the Municipal Government Act, S.A. 1994, c. M-26.1, that states:

    No bylaw or resolution may be challenged on the ground that it is unreasonable.

  42. We are left to consider whether Nanaimo was patently unreasonable in declaring this specific pile of soil a nuisance. The pile of soil had serious and continuing effects upon the neighbouring community. It was an annoyance and a source of pollution. Nanaimo's decision to declare Rascal's pile of soil a nuisance was not patently unreasonable. I would allow the appeal with costs throughout, set aside the order of the British Columbia Court of Appeal and reinstate the orders of Maczko J. and Rowan J. below, as well as Nanaimo's resolutions dated July 3, 1996 and August 19, 1996.


Cases

Shell Canada Products Ltd. v Vancouver (City), [1994] 1 S.C.R. 231; R. v Sharma, [1993] 1 S.C.R. 650; R. v Greenbaum, [1993] 1 S.C.R. 674; Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27; M. & D. Farm Ltd. v Manitoba Agricultural Credit Corp., [1999] 2 S.C.R. 961; 2747-3174 Québec Inc. v Québec (Régie des permis d'alcool), [1996] 3 S.C.R. 919; U.E.S., Local 298v Bibeault, [1988] 2 S.C.R. 1048; Pushpanathanv Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982; Godboutv Longueuil (City), [1997] 3 S.C.R. 844; Krusev Johnson, [1898] 2 Q.B. 91.

Legislations

Constitution Act, 1867: s.92(8), s.92(16).

Municipal Act, R.S.B.C. 1960 c. 255: s.873.

Municipal Act, R.S.B.C. 1979, c. 290, s932 s936.

Municipal Act, R.S.B.C. 1996, c. 323: s.725, s.727.

Interpretation Act, R.S.B.C. 1996, c. 238: s.8.

Statute Revision Act, R.S.B.C. 1996, c.440: s.8.

Municipal Government Act, S.A. 1994, c. M-26.1: s.539.

Representations

Guy E. McDannold, for the appellant (instructed by Staples McDannold Stewart, Vancouver).

Patrick G. Foy, Q.C., for the respondent (instructed by Ladner Downs, Vancouver).


all rights reserved