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McGILL LAW JOURNAL
[Vol. 34
Property, Planning and the Charter
Robert G. Doumani*
Jane Matthews Glenn**
The authors examine the impact of the
Canadian Charter of Rights and Freedoms
upon the powers of municipalities to control
the use of land. Despite the absence of spe-
cific entrenchment of property rights in the
Charter, the authors contend that these rights
are nevertheless significantly protected in
pre-Charter constitutional and administra-
tive law. Entrenchment of a protection-of-
property clause in the Charter would make
little difference to the effective protection of
property rights, particularly in light of the
moderating effect of s. 1 of the Charter, the
possibility of s. 33 overrides of Charter rights,
and the pre-existing protection of property
rights in other human rights instruments rec-
ognized in Canadian law. They argue, further,
that existing provisions of the Charter do
serve to enhance indirectly the protection of
property rights insofar as property concerns
may relate to life, liberty and security of the
person (s. 7) and equality (s. 15).
Les auteurs 6tudient l’impact de la Charte
canadienne des droits et liberts sur les pou-
voirs municipaux relatifs A l’usage des ter-
rains. M~me si la propri~t6 n’est pas
constitutionnellement enchfss~e dans la
Charte, les auteurs pr~tendent qu’elle a mal-
gr6 tout &6 largement reconnue et prot6g6ce
en droit constitutionnel et administratif
avant l’apparition de la Charte. Compte tenu
de l’effet mod~rateur de l’article I de la
Charte, de la derogation aux droits garantis
rendue possible par l’article 33 de la Charte
et de la protection accorde A la propri6t6 par
d’autres instruments de droit canadien, la
mention de la propri6t6 au sein de la Charte
ne modifierait pas vraiment le statut de Ia
propri6t6 en pratique. Par ailleurs, les auteurs
soutiennent que les dispositions de la Charte
contribuent effectivement A accroitre ]a pro-
tection de la propri6t6 car celle-ci, sous cer-
tains aspects, affecte la vie, la libert6 et la
s~curit6 de la personne (article 7) et l’galit6
(article 15).
*
*
*
“Of the firm of Gardiner, Roberts, Toronto, Canada
“Of the Faculty of Law and the School of Urban Planning, McGill University, Montreal,
Canada. This article is a revised version of a paper on the subject “The Canadian Charter of
Rights and Freedoms and Municipal Planning” presented to the Canadian Urban and Housing
Studies Conference, University of Winnipeg, February 1988.
McGill Law Journal 1989
Revue de droit de McGill
1989]
NOTES
1037
Introduction
I.
Recognition of Property Rights
A. Land Ownership
B. Land Use
II. Restrictions to Property Rights
A. Judicial Interpretation
Traditional Rules
The Charter
1.
2.
B. Legislative Override
1.
2.
Traditional Rules
The Charter
Conclusion
Introduction
As finally adopted, the Canadian Charter of Rights and Freedoms’ does
not specifically recognize a right to property. In this, it differs from such
international documents as the Universal Declaration of Human Rights,
the European Convention for the Protection of Human Rights, the European
Convention for the Protection of Human Rights and Fundamental Free-
doms, and the Inter-American Convention on Human Rights,2 as well as
such domestic models as the American Bill of Rights, 3 the Canadian Bill
of Rights4 (a simple federal statute) and various provincial Bills of Rights
such as Quebec’s Charter of Human Rights and Freedoms.5
Earlier versions of the Canadian Charter did include a guarantee of
property rights within its ambit, either as part and parcel of the guarantee
of life and liberty (following the earlier Canadian and American examples),
or as part of the mobility rights section (that is, the right of Canadian citizens
and permanent residents to acquire and hold property in any province), or
as a separate right in itself.6 However, any reference to property rights dis-
‘Part I of the Constitution Act, 1982, being Schedule B of the Canada Act 1982 (UK.), 1982,
c. 11 [hereinafter Charter] . See RW. Augustine, “Protection of the Right to Property under
the Canadian Charter of Rights and Freedoms” (1986) 18 Ottawa L. Rev. 55.
2Art. 17, Universal Declaration of Human Rights, U.N.G.A. Res. 217 (III), 3 U.N. G.A.O.R.
Supp. (No. 13), 71 U.N. Doc. A/810 (1948); Art. 1 of the First Protocol to the European
Convention for the Protection of Human Rights and Freedoms, 4 Nov. 1950, (in force 3 Sep.
1953), Europe T.S. No. 5, art. 1 (Inter-American).
3U.S. Const. amend. v, xiv.
4Appendix III to R.S.C. 1985, s. l(a) [adopted S.C. 1960, c. 44].
SR.S.Q., c. C-12 [first adopted S.Q. 1975, c. 6], s. 6.
6R. Romanow, J. Whyte & H. Leeson, Canada … Notwithstanding: The Making of the
Constitution 1976-1982 (Toronto: Carswell/Methuen, 1984) at 229-46; R. Elliot, “Interpreting
the Charter – Use of the Earlier Versions as an Aid” (1982) U.B.C.L. Rev. I 1 [Charter Edition].
1038
REVUE DE DROIT DE McGILL
[Vol. 34
appeared from the draft Charter in late 1980 and a Progressive Conservative
suggestion (made before the Joint Parliamentary Committee, which held
public hearings on the Charter in the fall of 1980) to include one was not
taken up by the then Liberal government. This resulted partially from the
New Democratic Party’s opposition to any entrenchment of property rights
on the grounds that it might jeopardize nationalization efforts. 7 It also re-
flected the objections of the governments of Saskatchewan and RE.I. to the
inclusion of property rights as an element of mobility rights, which, it was
felt, would threaten recently adopted legislation restricting non-resident
ownership of land.8 Since the adoption of the Charter, calls for the en-
trenchment of property rights from such bodies as the National Citizens
Coalition, The Canadian Chamber of Commerce, the Canadian and various
provincial Real Estate Associations, and the Canadian Bar Association have
gone largely unheeded. The Canadian Institute of Planners has counselled
caution in this regard. 9
The purpose of this paper is to examine the impact of the Charter upon
a municipality’s power to control the use of land. Its thesis, simply put, is
that the Charter, as drafted, has only limited effect in this regard and that
any specific entrenchment of property rights would not particularly change
this result. The reasons for adopting this admittedly bland stance are pursued
in two sections, the first on the recognition of property rights and the second
on their restriction. Throughout, the discussion of the Charter is preceded
by a consideration of traditional (i.e. non-Charter) rules. It is important to
approach the Charter in this way –
in context and not in isolation –
because, as the Supreme Court of Canada has indicated, if an impugned
action is invalid on other grounds, “there is, of course, no basis for resort
to the Charter”.1o As Mr. Justice Estey expressed it in another case:
The development of the Charter as it takes place in our constitutional law,
must necessarily be a careful process. Where issues do not compel commentary
on these new Charter provisions, none should be undertaken…II
7R. Pich6, “Saskatchewan Realtors Urge Property Rights Be Entrenched in Charter” [C.B.A.]
National (November 1987) 16.
8Romanow, Whyte & Leeson, supra, note 6 at 242-43.
9J. McBean, “The Implications of Entrenching Property Rights in Section 7 of the Charter
of Rights” (1988) 26 Alta L. Rev. 548 at 549; ‘Property Rights and Canada’s Charter of Rights
and Freedoms: A Brief by the Canadian Institute of Planners’, April 1985.The Canadian Ad-
visory Council on the Status of Women is opposed because of possible effect upon matrimonial
property legislation: McBean at 578.
10 Re Singh and Minister of Employment and Immigration, [1985] 1 S.C.R. 177 at 188, 17
D.L.R. (4th) 422, 14 C.R.R. 13, Wilson J. [hereinafter cited to S.C.R.].
“Law Society of Upper Canada v. Skapinker, [1984] 1 S.C.R. 357 at 383, 11 C.C.C. (3d)
481, 8 C.R.R. 193, 9 D.L.R. (4th) 161, Estey J. See also Hamilton Independent Variety and
Confectionary Stores Inc. v. Hamilton (City o) (1982), 143 D.L.R. (3d) 498, 20 M.P.L.R. 241
at 256 (Ont. C.A.) (Court “refraining” from basing judgment on Charter when by-law invalid
under tradional rules).
1989]
NOTES
1039
Before proceeding, however, one further remark is in order, concerning
the applicability of the Charter to municipal actions.1 2 This issue was fully
argued in Re McCutcheon and City of Toronto et aL,’ 3 where the High Court
of Ontario decided in favour of applicability by virtue of section 52(1) of
the Constitution Act, 1982 and section 32 of the Charter. The former declares
that the Constitution (including the Charter) prevails over any “law” in-
consistent with it. This was held to include municipal by-laws. The latter
section provides that the Charter applies to the Parliament and government
of Canada and to the legislature and the government of each province. In
the words of the Court in McCutcheon:
Municipalities, though a distinct level of government for some purposes, have
no constitutional status; they are merely “creatures of the legislature”, with no
existence independent of the legislature or government of each province.
Hence, just as the provincial legislatures and governments are bound by the
Charter, so too are municipalities, whose by-laws and other actions must be
considered, for the purposes of s. 32(1), as actions of the provincial government,
which gave them birth.14
Applicability of the Charter was also assumed in a number of other cases15
and the issue would probably not merit much discussion were it not for the
somewhat disturbing observation of the Supreme Court of Canada in Dol-
phin Delivery, made admittedly in obiter and apparently without the benefit
of argument, that the Charter only “possibly” applies to municipal by-laws.16
This issue can be finessed to a certain extent by recourse to the traditional
rules respecting delegated legislative competence: if the enabling legislation
itself does not offend the Charte, the municipality may be held to be acting
outside its jurisdiction in adopting a by-law that does so offend; or if the
municipality is held to be acting within its jurisdiction in adopting the
offensive by-law, the enabling legislation itself may be struck down as con-
trary to the Charter. However, it may not always be possible to frame the
argument in terms of the traditional rules (if, for example, the definition of
12See D. Gibson, “Distinguishing the Governors from the Governed: The Meaning of’Gov-
emnment’ under Section 32(1) of the Charter” (1983) 13 Man. L.J. 505 at 510-11.
13(1983), 41 O.R. (2d) 652, 147 D.L.R. (3d) 193, 22 M.PL.R. 139 (H.C.) [hereinafter cited
to O.R.] (municipal by-law parking offence). See also Re Hardie and District of Summerland
(1985), 24 D.L.R. (4th) 257, 68 B.C.L.R. 244, 22 C.R.R. 204 (S.C.) (compulsory retirement of
municipal employee).
14McCutcheon, ibid. at 663, Linden J.
IsSee, for example, Re Red Hot Video Ltd. and City of Vancouver (1983), 5 D.L.R. (4th) 61,
24 M.P.L.R. 60, 48 B.C.L.R. 381 (S.C.); Re Information Retailers Association of Metropolitan
Toronto Inc. et al. and Metropolitan Toronto (1985), 52 O.R. (2d) 449, 22 D.L.R. (4th) 161, 32
M.PL.R. 49 (C.A.); Re Francen et aL and City of Winnipeg (1986), 28 D.L.R. (4th) 81, [1986]
4 W.W.R. 193 (Man. C.A.); Lanoraie d’Autray v. Pelletier (1986), 32 M.P.L.R. 25 (Que. S.C.);
Re Allen and City of Hamilton (1987), 59 O.R. (2d) 498, 38 D.L.R. (4th) 303 (C.A.).
‘6Retail, Wholesale and Department Store Union, Local 580 et al. v. Dolphin Delivery Ltd.,
[1986] 2 S.C.R. 583 at 602, 33 D.L.R. (4th) 174, McIntyre J.
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McGILL LAW JOURNAL
[Vol. 34
discrimination is different under section 15 of the Charter than under the
traditional rules, as we shall suggest), 17 in which case the issue will be
squarely put.18 We shall assume in the following discussion that munici-
palities are subject to the Charter.
I. Recognition of Property Rights
As inheritors of the Western European legal tradition, Canadians as a
whole, and the Canadian legal community in particular, have long recog-
nized the basic sanctity of private property.
Those who struggled to wrest power from the Stuart kings and placed it in the
hands of the elected representatives of the people were not of a mind to replace
one despot by another. Rather they were guided by a philosophy that placed
a high premium on individual liberty and private property and that philosophy
continues to inform our fundamental political arrangements –
our
Constitution. 19
This tradition of respect for the institution of private property is reflected
in recognition by both the legislature and the judiciary of rights of land
ownership and of land use.
A. Land Ownership
1.
Traditional Rules
The question of land ownership involves a consideration of the right
to acquire property and the right not to have property taken away. At the
risk of over-generalization, it is fair to say that protection of the right to
acquire property has been traditionally left to private law, and that private
law has been concerned with the reverse side of the coin –
the right to
alienate property –
striking down restraints on alienation as contrary to
public policy. A detailed consideration of such private law mechanisms is
outside the scope of this paper, especially as the Charter would not appear
to apply in disputes between individuals involving questions of private
17See, infra, text following note 79.
‘8For a general discussion of the relationship between delegation and the Charter, see Dav-
idson v. Slaight Communications (1989), 93 N.R. 183 (S.C.C.) at 225 ft., Lamer J., as approved
by Dickson J. at 189.
19New Brunswick v. Estabrooks Pontiac Buick Ltd. (1982), 44 N.B.R. (2d) 201 at 210, 144
D.L.R. (3d) 21 (C.A.), LaForest J.A.
1989]
NOTES
1041
law.20 Such protective public intervention as did occur took place in the
nineteenth century and was directed at reversing the general private law
rules which severely restricted the extent to which foreigners could own real
property.
21
The right not to have property taken away, or expropriated, on the
other hand, is protected by traditional public law rules in two different ways.
Firstly, most expropriations are not effected by the legislature itself, but
rather by subordinate bodies acting under authority given to them in their
enabling legislation. As delegates of the legislature, these subordinate bodies
have only those powers specifically given to them, which must be exercised
in the manner indicated. Otherwise, their action will be struck down as
outside their jurisdiction, or ultra vires. Secondly, the “strict construction”
approach to expropriation statutes dictates that individuals shall not be
deprived of their property without compensation unless the words of the
statute clearly so demand. This has been used, for example, to deny that a
statute required a taking22 or to determine that it required compensation
to be paid. 23
It follows, therefore, that private property cannot be taken, or expro-
priated, in the absence of specific statutory authority. Admittedly, each pro-
vince, and the federal government, has one or more expropriation statutes, 24
but the authority to expropriate therein recognized is surrounded by limi-
tations as to who can expropriate, the purposes (normally public) for which
property can be expropriated,2 5 the procedure by which it can be expro-
20Dolphin Delivery, supra, note 16. This question is in fact hotly disputed: see, for example,
D. Gibson, “The Charter and the Private Sector” (1982) 12 Man. L.J. 213; D. Lluelles & P
Trudel, “‘application de la Charte canadienne des droits et libertrs aux rapports de droit
priv”
(1984) 18 R.J.T. 219; J. Whyte, “Is the Private Sector Affected by the Charter?” in L.
Smith, ed., Righting the Balance: Canada’s New Equality Rights (Saskatoon: Canadian Human
Rights Reporter, 1986) 145; B. Slattery, “The Charters Relevance to Private Litigation: Does
Dolphin Deliver?” (1987) 32 McGill L.J. 905.
21J. Spencer, “The Alien Landowner in Canada” (1973) 51 Can. Bar Rev. 389.
22Estabrooks Pontiac, supra, note 19 (seizure of property belonging to third party pursuant
to tax lien).
Case Comment (1978) 24 McGill L.J. 627 (compensation payable for loss of goodwill).
23Manitoba Fisheries Ltd. v. R., [1979] 1 S.C.R. 101, 88 D.L.R. (3d) 462. See, D.P. Jones,
24See, for example, Expropriation Act, R.S.C. 1985, c. E-21; Expropriation Act, R.S.O. 1980,
25See, for example, McIntyre Ranching Co. Ltd. v. Municipal District of Cardston No. 6
c. 148; Expropriation Act, R.S.Q. c. E-24.
(1982), 20 M.P.L.R. 49 (Alta. Q.B.).
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REVUE DE DROIT DE McGILL
[Vol. 34
including ample opportunity for affected individuals to be heard 26
priated –
and the basis upon which compensation is to be calculated. 27 If the
–
statutory requirements are not honoured, the expropriation in question will
be struck down as ultra vires.
Looking more closely at the question of compensation, the statutes
require that it be paid both for property actually taken and, in appropriate
cases, for property remaining in the hands of the owner by way of damages
for injurious affection. The compensation for property taken is calculated
on the basis of “value to the owner” or, more recently and more generally,
“market value” as of the date of possession. Courts have occasionally in-
terpreted this latter phrase so as to award the expropriated party what might
be termed “value to the taker”, that is, a value higher than might otherwise
have been obtained on the open market on the grounds that the use to which
the expropriating party wished to put the property represented a “realized
potentiality” for the property.28 As well, in spite of the Pointe Gourde rule,29
compensation awards have tended to include an amount representing a plus-
value resulting from knowledge of the expropriation while at the same time
disregarding any decrease in value that might be attributable to the actions
of the expropriating party itself, such as “planning blight” resulting from
rumours of expropriation 30 or a down-zoning by the municipality.31 In short,
26See, for example, Costello v. Calgary (City oJ), [1983] 1 S.C.R. 14, 143 D.L.R. (3d) 385,
[1983] 2 W.W.R. 673, 20 M.PL.R. 170 (strict construction approach means failure to give
proper notice to one co-owner vitiates expropriation procedure). See also Re Trustees of St.
Peter’s Evangelical Lutheran Church and City of Ottawa, [1982] 2 S.C.R. 616, 140 D.L.R. (3d)
577, 20 M.PL.R. 121 (notice requirements of heritage protection legislation must be strictly
complied with, even under liberal construction approach). See generally W.A. Sullivan, “A Re-
Assertion of Individual Property Rights” (1983) 13 Man. L.J. 389.
27See generally E. Todd, The Law of Expropriation in Canada (Toronto: Carswell, 1976).
28See, for example, Fraser v. R.,[1963] S.C.R. 455, 40 D.L.R. (2d) 707; Saint John’s Priory
of Canada Properties v. The City of Saint John, [1972] S.C.R. 746, 27 D.L.R. (3d) 459,4 N.B.R.
(2d) 344.
29Named after a decision of the Privy Council in Point Gourde Quarrying and Transport Co.
v. Sub-Intendant of Crown Lands, [1947] A.C. 565 (on appeal from the Supreme Court of
Trinidad and Tobago), to the effect that compensation should not reflect increases in value
resulting from prior knowledge of an expropriation, which does not appear to be generally
followed in Canada. Note that some statutes specifically direct that any increase or decrease
in value resulting from the proposed development itself be disregarded: see, for example,
Expropriation Act, R.S.O. 1980, c.148, s. 14(4)(b).
Winnipeg, [1972] S.C.R. 289, 21 D.L.R. (2d) 677.
30See, for example, Kraft Construction Company Ltd. v. Metropolitan Corporation of Greater
31D.E Potter, “Compensation on Expropriation: The Effect of Zoning and Other Land Use
Restrictions on the Award” (1977) 3 Dalhousie L.J. 775. See, for example, Hauffv. Vancouver
(City o9 (1981), 28 B.C.L.R. 276 (C.A.). But see Vancouver (City of) v. Simpson (1976), [1977]
1 S.C.R. 71, 65 D.L.R. (3d) 669, [1975] 1 W.W.R. 207.
1989]
NOTES
1043
the approach in almost every case would appear to favour the individual
property owner.32
Moreover, the courts have on occasion admitted that regulation of the
use of property can be so restrictive as to amount to an expropriation for
which compensation must be paid, 33 although for most, if not all, land use
control decisions this would not be the case.34 As well, a zoning by-law
cannot take effect retroactively so as to interfere with a property owner’s
acquired rights under existing zoning (non-conforming use) in the absence
of some specific statutory provision to the contrary. In other words, while
there are no acquired rights to existing zoning, there are acquired rights
under it; if such rights are interfered with, this constitutes an expropriation
for which, as a general rule, compensation must be paid.35
2.
The Charter
The fact that any mention of the right to property was explicitly omitted
from the final draft of the Charter makes it difficult to argue in favour of
an implicit guarantee of such a right. Nevertheless, certain provisions of
the Charter arguably afford a limited protection of the right to ownership.
One such possibility is section 6, which protects mobility rights. How-
ever, it has been held that the recognition therein of the right “to pursue
the gaining of a livelihood in any province” is not directed towards the
protection or preservation of property rights, 36 a conclusion which is sup-
ported by the legislative history of the section. 37
320ne notable exception denies compensation for injurious affection resulting from construc-
tion or use of public works on adjoining property when no land of the complainant has been
expropriated: see, for example, St. Pierre v. Ontario (Minister of Transportation and Com-
munications), [1987] 1 S.C.R. 906, 39 D.L.R. (4th) 10; E. Todd, Case Comment (1988) 67 Can.
Bar Rev. 357.
33British Columbia v. Tener, [1985] 1 S.C.R. 533, 17 D.L.R. (4th) 1; B. Barton, Case Comment
(1987) 66 Can. Bar Rev. 145.
34putting it more directly, a down-zoning is not a “taking” for which compensation must be
paid. See, for example, Re Salvation Army Canada East and Minister of Government Services
(1986), 53 O.R. 704, 42 R.PR. 142 (C.A.). But see, infra, the text at note 61ff. Nor, on the
other hand, is a property owner required to account for any “betterment” resulting from an
up-zoning, although this attitude might change as a result of more frequent recourse to such
techniques as bonus zoning, transfer of development rights and lot levies.
35See, for example, the Charter of the City of Montreal, S.Q. 1959-60, c. 102, s. 524(2)(b).
But see Oshawva (City o) v. 505191 Ontario Ltd. (1985), 54 O.R. 632 at 641, 32 M.RL.R. 158
(C.A.) (legislation making “crystal clear” existing rights to be taken away without compensa-
tion), Goodman J.A.
36Reference re Prince Edward Island Land Protection Act (1987), 40 D.L.R. (4th) 1 at 15,
197 A.PR. 249 (PE.I.S.C., in banco), Mitchell J. [hereinafter cited to D.L.R.]. He also felt that
the section did not protect economic rights.
37See text accompanying note 8, supra.
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McGILL LAW JOURNAL
[Vol. 34
Another limited possibility is section 8, which protects against unrea-
sonable search and seizure. The reference to unreasonable “search” could
affect the way in which property inspectors, for example, must go about
their tasks, 38 but the protection against unreasonable “seizure” has been
held not to extend to the taking of property by expropriation. 39 Had the
drafters wished to include a general guarantee of property, it was felt that
they probably would have done so in section 7.40
Section 7 is the one most often referred to in connection with a right
to property. It reads as follows:
Everyone has the right to life, liberty and security of the person and the right
not to be deprived thereof except in accordance with the principles of fun-
damental justice.
The immediate Canadian precursor of section 7 is section l(a) of the
Canadian Bill of Rights,4 1 which recognizes without discrimination “the
right of the individual to life, liberty, security of the person and the enjoy-
ment ofproperty [emphasis added], and the right not to be deprived thereof
except by due process of law”. Section l(a), in turn, was modelled on the
American Bill of Rights, the Fourteenth Amendment of which provides:
…nor shall any State deprive any person of life, liberty, or property, without
due process of law; nor to deny to any person within its jurisdiction the equal
protection of the laws… 42
(The Fifth Amendment, which applies at the federal level, is to substantially
the same effect.) As we have seen, various drafts of the Charter did include
a guarantee of the right to property in section 7, following these earlier
models, but this was consciously omitted from the final version.
Given this legislative history, it is difficult to affirm that the guarantee
in section 7 of the right to “life, liberty and security of the person” includes
38R. v. Bichel (1986), 33 D.L.R. (4th) 254, [1986] 5 W.W.R. 262 (B.C.C.A.) (building by-law
authorizing inspector to enter at all reasonable times to inspect for compliance with by-law
not in contravention of s. 8). See generally Hunter et al. v. Southam Inc., [1984] 2 S.C.R. 145,
11 D.L.R. (4th) 641.
39Re Becker and Alberta (1983), 45 A.R. 36, 148 D.L.R. (3d) 539 (C.A.). It has also been
held not to prevent a municipality from causing the removal of a number of scrap objects left
on a lot in contravention of a zoning by-law:see Re Allen and City of Hamilton, supra, note
15.
40Becker, ibid., at 543 citing E Chevrette in W.S. Tamapolsky & G.A. Beaudoin, eds., The
Canadian Charter of Rights and Freedoms (Toronto: Carswell, 1982) at 298.
41Supra, note 4.
42Supra, note 3.
1989]
NOTES
1045
property rights per se, although that position was taken on one occasion.43
And after some initial hesitation, most courts also now recognize that it
does not encompass the broader proprietary notion of commercial or eco-
nomic rights, such as the right to operate amusement devices. 44
Nevertheless, it might very well be that section 7 does protect a more
limited right to property which would come into play in certain circum-
stances. 45 This possibility was recognized by Mr. Justice Mitchell in Ref-
erence re Prince Edward Island Lands Protection Act.46 While he agreed with
the other members of the Court of Appeal that section 7 is not concerned
with economic rights and does not protect a right to acquire property for
its own sake, in his opinion:
That does not mean that s. 7 has no property content at all but it does mean
that any such content must fall within the context of one or another of the
expressed rights. Any rights respecting property must be found within one or
another of the concepts of “life”, “liberty” or “security of the person”. 47
In this way, the right to “liberty” would include some measure of protection
in regard to property already acquired so that, for example, the list of prop-
43New Brunswick v. Fisherman’s Wharf Ltd. (1982), 135 D.L.R. (3d) 307, 105 A.PR. 42
(N.B.Q.B.) (right to “security” includes property rights); aff’d on other grounds sub nom. New
Brunswick v. Estabrooks Pontiac Buick Ltd., supra, note 19. But see contra, particularly Man-
icom v. County of Oxford (1985), 52 O.R. 137, 21 D.L.R. (4th) 611 (Div. Ct.) (objection to
proposed landfill waste disposal site involved claim to property rights not protected by s. 7);
ReAppotive and City of Ottawa (1985), 16 O.M.B.R. 316 (Ont. H.C.) (interim control zoning
by-law not offending Charter as s. 7 probably does not include property rights and in any event
restrictions reasonable). See also Qually v. Qually, [1987] 2 W.W.R. 553 at 558 (Sask. Unif.
Fain. Ct.), (aff’d [1989] 2 W.W.R. 268 (Sask. C.A.)) (matrimonial property statute not offending
s. 7) in which Dickson J., in commenting on the Fisherman’s Wharf decision, observed: “In
my opinion, Parliament did not intend that the courts should be free to expand the list of
rights protected by the Charter by giving a broad interpretation to the words chosen by the
drafters. . . . The words of Parliament must be given their ordinary meaning, not some fanciful
and imaginative scope that would encourage resourceful counsel and sympathetic judges to
make up whatever deficiencies they perceive in the existing list of protected rights”.
44Re Francen, supra, note 15. But see contra, for example, Re D. & H. Holdings Ltd. and
City of Vancouver (1985), 21 D.L.R. (4th) 230, 64 B.C.L.R. 102 (S.C.) (failure to issue business
licences to hotel proprietor held infringement of liberty under s. 7). For a full discussion of
the relationship between property rights, economic rights and s. 7, see Wilson v. Medical
Services Com’n of B.C. (1989), 53 D.L.R. (4th) 171, [1989] 2 W.W.R. 1, 30 B.C.L.R. (2d) 1
(C.A.), and the cases cited therein.
(1983) 13 Man. L.J. 455.
45J. Whyte, “Fundamental Justice: The Scope and Application of Section 7 of the Charter”
46Supra, note 36. The Prince Edward Island Lands Protection Act, S.P.E.I. 1982, c. 16, limits
the aggregate land holdings that may be acquired as of right by individuals (1000 acres) and
corporations (3000 acres) within the province to avoid concentration of lands, particularly
agricultural lands.
47Ibid. at 16.
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[Vol. 34
erty exempt from seizure for debt could not be overly restrictive. 48 As well,
the concept of “security” of the person would include the right “to acquire
such property, including land, as becomes necessary … to enjoy in full meas-
ure the guaranteed right to security of the person”. 49
The Supreme Court of Canada has made it clear that the expression
“fundamental justice” in the phrase “except in accordance with the prin-
cipals of fundamental justice” has a substantive as well as a procedural
element. 50 Assuming that section 7 does afford an admittedly circumscribed
measure of protection to land ownership, this means that this section does
more than constitutionally entrench, say, a right to a hearing. It also gives
the courts an opportunity to evaluate the content of legislation and related
enactments to determine, for example, whether or not they offend the limited
recognition of property rights outlined above.
A final possible Charter source protective of property rights is section
26, which provides as follows:
The guarantee in this Charter of certain rights and freedoms shall not be con-
strued as denying the existence of any other rights and freedoms that exist in
Canada.
This “undeclared rights” section was included to make it clear that the
Charter does not take away existing rights or freedoms not specifically men-
tioned in it, such as the right to property. While it is true that this section
does not operate so as to give such rights a more extensive guarantee than
they might otherwise have,51 it has had the effect of enhancing the status
of other human rights instruments which themselves guarantee the unde-
clared rights. As Beetz J. remarked in Re Singh and Minister of Employment
and Immigration:
Thus, [section 26 ensures that] the Canadian Bill of Rights retains all its force
and effect, together with the various provincial charters of rights. Because these
constitutional or quasi-constitutional instruments are drafted differently, they
are susceptible of producing cumulative effects for the better protection of rights
4SOntario’s Execution Act, R.S.O. 1980, c. 146, s.2, for example, currently exempts $1000
clothing, and $2000 of furniture, food, fuel and other household goods for the debtor and
family.
49Reference re Prince Edward Island Lands Protection Act, supra, note 36, at 17.
50Reference re Section 94(2) of the Motor Vehicle Act, [1985] 2 S.C.R. 486, 24 D.L.R (4th)
536, [1986] 1 W.W.R. 481. The drafters of the Charter clearly intended the more restrictive
interpretation: see Whyte, supra, note 45, at 456-62.
51p. Hogg, ConstitutionalLaw of Canada, 2d ed. (Toronto: Carswell, 1985) at 703-04. But
see, contra, New Brunswick v. Fisherman’s Wharf, supra, note 43, criticized G.J. Brandt, Com-
ment (1983) 61 Can. Bar Rev. 398.
19891
NOTES
1047
and freedoms. But this beneficial result will be lost if these instruments fall
into neglect. It is particularly so where they contain provisions not to be found
in the Canadian Charter of Rights and Freedoms … 52
Section 26 thus affords an indirect, and admittedly attenuated, protection
of the right to property to the extent that such a right is enshrined in these
other human rights instruments.5 3
B. Land Use
1.
Traditional Rules
A number of private law mechanisms protect an individual landowner’s
use of land by limiting the extent to which other persons may interfere with
it. Nuisance (a precursor of zoning), trespass and, in the civil law system,
abuse of rights are examples but, again, their consideration is beyond the
scope of this paper.
More important for present purposes are the range of public law rules
that limit and control the extent to which public officials can interfere with
an owner’s rights of user. Some of these rules are statutory and others ju-
dicial. As with expropriations, 54 judicial intervention is grounded in two
separate notions. The first is the concept of ultra ,ires. Municipal govern-
ments, although democratically elected, are technically subordinate bodies
and their actions are subject to the same scrutiny as other subordinate bodies
to ensure that they are acting within their jurisdiction, or intra vires. The
concept of ultra vires is reinforced by the second notion, the “strict con-
struction” approach, which treats land use control decisions as limitations
on the rights of property owners, to be construed so as to interfere as little
as possible with such rights. Although the strict construction approach is
invoked less uniformly in regard to land use control decisions than to other
municipal actions that interfere more directly with property rights (such as
expropriation or demolition orders), recourse to it increases the chances that
a land use control decision will be held ultra vires or at least inapplicable. 55
The extent to which both legislation and judicial decisions respect pri-
vate property rights can be illustrated by a number of procedural and sub-
stantive examples.
52Supra, note 10, at 224, Beetz J.
53See, supra, the text at notes 4ff and 41 ff
54See supra, the text following note 21.
55See, for example, Oakwood Development Ltd. v. Rural Municipality of St. Francois Xavier,
[1985] 2 S.C.R. 164, 20 D.L.R. (4th) 641, 31 M.PL.R. 1 (subdivision control curtailment of
common law rights).
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McGILL LAW JOURNAL
[Vol. 34
(i) Procedural protection
Land use control legislation of all provinces gives ample opportunity
to be heard to individuals affected by a planning decision, especially the
owners of property directly affected but also, more recently and more gen-
erally, the residents of the area in question or the community as a whole.
A particularly vivid example is Quebec’s referendum procedure, which gives
individuals a collective veto over zoning decisions affecting them. Such
individuals may request that a zoning amendment be put to a public vote,
and if enough of them do so, then the by-law must be approved by the
majority of those voting before it is effective. This procedural protection
was originally reserved to property owners, but in 1979 it was extended to
include tenants.5 6
Statutory procedural protection is jealously guarded by the courts,
which strike down instruments that have been adopted in disregard of either
their letter 57 or their spirit.58 As well, courts have been quick to import a
right to be heard in situations in which the statute is silent: more tradi-
tionally, when the decision-making body is acting in a quasi-judicial capacity
and is bound therefore to follow the rules of natural justice, including the
rule audi alteram partem;59 or more recently and more generally, when an
individual’s rights are being interfered with (whether or not the decision-
making body in question is acting quasi-judicially) so as to require that it
act with procedural “fairness” which, at a minimum, includes the right to
be heard.6 0
56See previously Cities and towns act, R.S.Q. 1964, c. 193,s. 426(1); replaced by Act respecting
land use planning and development, R.S.Q., c. A-I 9.1, s. 131. See now Act respecting elections
and referendums in municipalities, S.Q. 1987, c. 57, s. 514ff. The Ontario Municipal Board
also serves to protect the interests of surrounding property owners.
57See, for example, Re Little and Cowichan Valley Regional District (1978), 94 D.L.R. (3d)
417, 8 B.C.L.R. 369 (C.A.) (statutory requirement that notice of zoning by-law public hearing
be published in “newspaper” not satisfied by publication in weekly news publication without
regular subscription list).
58See, for example, Legault v. Ville de Fabreville et Fury Speed Way Co. Ltd [1963] C.S. 166
(statutory requirement of presenting by-law to public meeting not satisfied by simple reading
of same without discussion).
59See, for example, Wiswell v. Metropolitan Corporation of Greater Winnipeg, [ 1965] S.C.R.
60″The Village”Mobile Home Estate Ltd. v. British Columbia (1982), 142 D.L.R. (3d) 742,
41 B.C.L.R. 189 (C.A.) (procedural fairness gives owner of land proposed for inclusion in
already established agricultural land reserve right to be heard); but see Delsom Estates Limited
v. Corporation of Delta (1981), 26 B.C.L.R. 263 (S.C., in Chambers) (concept of procedural
fairness inapplicable to legislative function of adopting development cost charges by-law of
general application). See generally R.A. Macdonald, “Judicial Review and Procedural Fairness
in Administrative Law”, Part 1 (1980) 25 McGill L.J. 520, Part 11 (1981) 26 McGill L.J. 1.
512, 51 D.L.R. (2d) 754.
1989)
NOTES
1049
(ii) Substantive protection
A number of traditional rules restrict the extent to which an owner’s
rights over land can be restricted by a decision of a public authority, the
most important of which is the rule already canvassed that a subordinate
decision-making body, which includes a municipality, cannot exceed the
powers delegated to it in its enabling legislation. One good example of this
is the rule that a power to regulate does not include a power to prohibit, so
that a municipality cannot use its zoning power, which is normally couched
in terms of regulation, to prohibit the use of land in the absence of specific
statutory authority to this effect. 6’ Nor will the courts normally uphold by-
laws that are prohibitory in effect although regulatory in form. 62 In the same
vein, courts have usually, but not always, struck down by-laws zoning land
for a public purpose, such as a park, on the ground that this represents
“disguised expropriation” and hence is an invalid exercise of the zoning
power.63 Another example is the acknowledgement that by-laws can be
struck down as unreasonable 64 or, in what is perhaps just another way of
expressing the same thing, are arguably subject to a general requirement of
“substantive fairness”. 65
61See, for example, R. v. Gibson; Exparte Cromiller, [1959] O.W.N. 254; Labellev. St-Laurent
(Cit de) (1979), 10 M.PL.R. 251 (Que. S.C.) (by-law enacted under regulatory power prohibiting
use of trailers as homes invalid); Duquette v. Port Alberni (1977), 3 M.P.L.R. 177 (B.C.S.C.)
(by-law prohibiting any building within 100 feet of river on land otherwise zoned residential
invalid). This argument is often used in regard to licensing powers: see Toronto (City of) v.
Virgo, [1896] A.C. 88 (J.C.P.C.) (by-law restricting street peddlers from central business district
prohibitory in effect) and, for a more modem application, Prince George (City o) v. Payne
(1977), [1979] 1 S.C.R. 458, 75 D.L.R. (3d) 1, [1977] 4 W.W.R. 275 (refusal of business license
for adult boutique prohibitory).
62See, for example, Dorval v. Sanguinet Automobile Ltee, [1960] B.R. 706 (general zoning
by-law making property unusable inapplicable). But see contra, Soo Mill and Lumber Co. Ltd.
v. Sault Ste Marie (City oJ), [1975] 2 S.C.R. 78, 47 D.L.R. (3d) 1 (by-law upheld even though
prohibitory in effect).
63See, for example, Sula v. Duvernay (Cit6 de), [1970] C.A. 234 ; Aubry v. Trois-Rivitres
Ouest (Ville de) (1978), 4 M.P.L.R. 62 (Que. C.A.). See contra, Regina Auto Court v. Regina
(City) (1958), 58 W.W.R. 167 (Sask. Q.B.); Barrett Lumber Co. Ltd. v. Halifax County, (1975)
19 N.S.R. (2d) 594 (S.C., T. D.) (rezoning land for garbage dump valid). See also Vancouver
(City o) v. Simpson, supra, note 31 (upholding officer’s refusal to approve subdivision proposal
on ground that against public interest as would render later acquisition of land for park more
costly – valid exercise of discretion).
“Bell v. R., [1979] 2 S.C.R. 212 at 222, 98 D.L.R. (3d) 255, Spence J.:”I also realize that
the doctrine of unreasonableness permitting the declaration of invalidity as to municipal by-
laws has, by virtue of the provisions set out in the MunicipalAct, lately been very much limited
but I point out that even as limited the doctrine still exists . . .”. But see Re Francen, supra,
note 15 at 91, Matas J.A.
65See generally D. Mullan, “Natural Justice and Fairness – Substantive as well as Procedural
Standards for the Review of Administrative Decision-Making” (1982) 27 McGill L.J. 250, who
counsels caution in regard to the notion of “substantive fairness”.
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REVUE DE DROIT DE McGILL
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Yet another example is the extent to which courts will strike down
zoning by-laws as discriminatory. As a general rule, a municipality cannot
discriminate in the exercise of its regulatory powers; it must exercise them
by enacting general regulations of uniform application. 66 The difficulty in
applying this rule to zoning by-laws, however, is that discrimination is the
essence of zoning.
The mere delimitation of the boundaries of the area affected by such a by-law
involves an element of discrimination. On one side of an arbitrary line an
owner may be prevented from doing something with his property which an-
other owner, on the other side of the line, with a property which corresponds
in all respects except location, is free to do.67
For this reason, comprehensive or general zoning by-laws covering a wide
area of a municipality are not regarded as discriminatory so long as each
property within the zone is treated in the same way. Spot zonings which
single out, explicitly or even implicitly, one or more lots owned by the same
person for unfavourable treatment (a down-zoning), on the other hand, can
be struck down as discriminatory if other similar property in the vicinity
is not down-zoned at the same time68 or if there are no proper planning
grounds to warrant the down-zoning. 69 On the other hand, spot up-zonings
are generally free from attack by neighbouring landowners or commercial
rivals. 70
2.
The Charter
Most commentators agree that the equality rights provision of the
Charter is the most likely source of challenge to municipal action in the
field of land use planning, particularly in view of the fact that in both the
66See, for example, Re Dickie Dee Ice Cream Ltd. and City of Winnipeg (1985), 28 D.L.R.
(4th) 33, 40 Man. R. (2d) 72, 31 M.PL.R. 109 (C.A.) (by-law permitting food hawkers in all
areas of municipality except one discriminatory); Re Francen, supra, note 15 (by-law exempting
amusement devices in beer parlours etc. from general licensing requirements discriminatory).
(B.C.S.C.).
67Townships of Scarborough v. Bondi, [1959] S.C.R. 444 at 451, 18 D.L.R. 161, Judson J.
68See, for example, Re Dillabough and Township of Esquimalt (1967), 62 D.L.R. (2d) 653
69See, for example, Re H.G. Winton Ltd. and Borough of North York (1978), 20 O.R. (2d)
737, 88 D.L.R. (3d) 733, 6 M.P.L.R. 1 (Div. Ct) (by-law prohibiting use of Mazo de la Roche
mansion as Zoroastrian temple).
70See, for example, Re North York Township, [1960] O.R. 374, 24 D.L.R. (2d) 12 (C.A.); Re
Mississauga Golf and Country Club (1963), 2 O.R. 625, 40 D.L.R. (2d) 673 (C.A.); Cohen v.
Calgary and Carma Developers (1967), 64 D.L.R. (2d) 238, 60 W.W.R. (N.S.) 720 (Alta S.C.,
Trial Div.).
1989]
NOTES
American and Canadian Bills of Rights, the guarantee of property rights is
textually linked to equality rights. 7 1
Equality rights are guaranteed under section 15 of the Charter, subsec-
tion (1) of which provides as follows:
Every individual is equal before the law and under the law and has the right
to the equal protection and equal benefit of the law without discrimination
and, in particular, without discrimination based on race, national or ethnic
origin, colour, religion, sex, age or mental or physical disability.
Its application requires a two-step analysis: a determination , firstly, that
the distinction in question results in a violation of at least one of the equality
rights and, secondly, that the distinction is discriminatory in purpose or
effect. 7 2
The wide-ranging, albeit somewhat cumbersone, articulation of the
equality rights (“equal before the law and under the law”, “equal protection
and equal benefit of the law”) means that the protection afforded by section
15 extends to substantive as well as procedural matters. This conclusion
was easier to reach in regard to this section than to section 7, as the legislative
history of the later section makes it clear that the phrase “equal under the
law” was added to “before the law” to ensure equality in respect of the
substance of the law as well as its administration. 73
The second requirement, that the distinction be discriminatory in pur-
pose and effect, is the more difficult one. It emphasizes that not every dis-
tinction, no matter how reasonable, constitutes “discrimination” under
section 15: the word must be understood in its pejorative sense, so as to
limit application of the section to those distinctions which involve prejudice
or disadvantage. 74 This would be most obviously the case where the dis-
tinction is based on one of the express grounds enumerated in the section
itself (race, national or ethnic origin, colour, religion, sex, age or mental or
71See supra, the text at note 41ff. Arguments based on s. 7 might also be advanced, but they
face the objection canvassed earlier (supra, the text at note 43ff.) that this section does not
protect property rights: see, for example, Alcoholism Foundation of Manitoba v. Winnipeg (City
oJ), [1988] 6 W.W.R. 440 (Man. Q.B.).
72Turpin v. R., [1989] 1 S.C.R. 1296 at 1330; Andrews v. Law Society of British Columbia
[1989], 1 S.C.R. 143 at 181, 56 D.L.R. (4th) 1, 91 N.R. 255 [ hereinafter Andrews, cited to
S.C.R.].
73Hogg, supra, note 47 at 798. The expression ‘equality before the law” found in s. 1(b) of
the Canadian Bill of Rights, the forerunner of s. 15, had been held by the Supreme Court of
Canada to guarantee equality in the administration of law only: Attorney-General of Canada
v. Lavell, [1974] S.C.R. 1349, 38 D.L.R. (3d) 481.
74Andrews, supra, note 72 at 180-81, McIntyre J. The Couit in that case rejected an approach
involving a consideration of the unreasonableness or unfairness of the provision in question,
which was felt would unduly restrict the role of section 1: 179-80. See the text accompanying
note 99, infra.
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McGILL LAW JOURNAL
[Vol. 34
physical disability). In the field of land-use planning, section 15 thus sup-
plements similar protection usually afforded under the traditional rules ex-
cept where the discrimination is the direct result of legislation. As one Court
has observed:
[O]ur law does not permit municipal by-laws to be used as instruments of
intolerance and oppression. … It is not the function of municipal councils
through the medium of zoning by-laws, or otherwise, to strive to forestall the
practices of a particular religious faith.75
Other land use decisions might be open to attack under section 15 as
constituting discrimination on implied grounds, since the words “in par-
ticular” make it clear that the list of express grounds in the section is il-
lustrative and not exhaustive. Even under the limited notion suggested by
Mr. Justice McIntyre in the Andrews case 76 that such grounds must be anal-
ogous to the enumerated grounds, in the sense of being based on grounds
relating to personal characteristics of the individual or group affected, it is
arguable that non-resident ownership legislation offends section 15 as con-
stituting discrimination on grounds of “residence”, for example; 77 or that
legislation restricting to property owners a right to vote on a municipal by-
law offends section 15 as constituting discrimination on grounds of “prop-
erty-ownership”; 78 or that zoning by-laws limiting occupancy to persons
related by marriage or consanguinity discriminate on the grounds of “family
status”. Similar protection is obviously not available under traditional rules
where the discrimination is legislative in origin. Nor would it appear to be
readily available, unlike discrimination on the express grounds, where it
flows from actions of subordinate authorities. The last example, for instance,
was struck down by the Court not on grounds of discrimination, but on
75Re Hutterian Bretheren Church of Eagle Creek Inc. and Rural Municipality of Eagle Creek
No 376 (1983), 144 D.L.R. (3d) 685 at 700, 21 M.P.L.R. 108, 21 Sask. R. 361 (C.A.), Tallis and
Cameron JJ.A. (by-law permitting maximum of two single-family dwellings on one agricultural
holding interpreted to permit establishment of communal farm). See also Re H.G. Winton Ltd.
and Borough of North York, supra, note 69 (by-law designed to prohibit Zoroastrian temple
void as adopted in bad faith). But see, for example, The Communal Property Act, S.A. 1947,
c. 16 (limiting extent of landholdings of especially Hutterite and Doukhobor colonies); upheld
Walterv. A.G. Alberta, [1969] S.C.R. 383, 3 D.L.R. (3d) 1, 66 W.W.R. 513; repealed S.A. 1972,
c. 103 for reason that probably contravening Alberta Bill ofRights, S.A. 1972, c. 103 for reason
that probably contravening Alberta Bill of Rights, S.A. 1972, c. 1 (now R.S.A. 1980, c. A-16).
76Supra, note 72 at 182.
77See, for example, Act respecting the acquisition offarm land by non-residents, R.S.Q., c.
A-4.1; Prince Edward Island Lands Protection Act, S.P.E.I. 1982, c. 16; The Saskatchewan Farm
Ownership Act, R.S.S., c. S-17; Farm Lands Ownership Act, S.M. 1982-83-84, c. 22,
78Note in this regard that art. 26 of the United Nations Covenant on Civil and Political
Rights, of which Canada is a signatory, prohibits discrimination on the grounds of “property”
[but in French “fortune”]; an Optional Protocol to which Canada adheres permits individual
petitions (complaints) to an international enforcement agency.
19891
NOTES
1053
grounds of unreasonableness –
hesitation. 79
and only then after considerable
Still other land use decisions might constitute examples of what has
been termed “freestanding” discrimination, that is, discrimination unrelated
to any particular ground.80 This possibility was explicitly left open by Mr.
Justice La Forest in the Andrews case (although he counselled caution in
regard to its use):
I realize that it is no easy task to distinguish between what is fundamental and
what is not and that in this context this may demand consideration of abstruse
theories of equality. For example, there may well be legislative or governmental
differentiation between individuals or groups that is so grossly unfair to an
individual or group and so devoid of any rational relationship to a legitimate
state purpose as to offend against the principle of equality before and under the
law as to merit intervention pursuant to s. 15. … Assuming there is room under
s. 15 for judicial intervention beyond the traditionally established and anal-
ogous policies against discrimination discussed by my colleagues, it bears re-
peating that considerations of institutional functions and resources should
make courts extremely wary about questioning legislative and governmental
choices in such areas.8′
This is probably the most important way in which the protection afforded
by section 15 would be wider than that available under the traditional rules,
and could result in municipal actions being attacked in situations the tra-
ditional rules do not reach.
Freestanding discrimination is said to be present either where some
members of a class are treated differently from other members of the same
class, without any apparent reason for the distinction,82 or where the entire
class is treated similarly but the class itself is singled out for special treatment
for reasons based upon an unwarranted stereotype about the capacities and
79Bell v. R., supra, note 64.
80M. Gold, “A Principled Approach to Equality Rights: A Preliminary Inquiry” (1982) 4 Sup.
Ct L. Rev. 131 at 145-46.
8tAndrews, supra, note 72 at 194 [emphasis added]. The other members of the Court also
cautioned against unduly restricting the definition of discrimination so as to prejudice decisions
in future cases: at 153, Wilson, J. and at 175, McIntyre, J.
82The difficulty, of course, is the definition of the class, as cases dealing with the three-month
limitation period in tort actions against a municipality attest: the limitation period was struck
down as discriminatory when the class was defined widely (“plaintiffs in a negligence action”),
but upheld when it was defined narrowly (“plaintiffs in a negligence action against a munici-
pality”): Streng v. Winchester (Township o) (1986), 56 O.R. (2nd) 649, 31 D.L.R. (4th) 734
(H.C.) (legislation discriminatory); Meldrum v. Saskatoon (City ol) et al. (1986), 46 Sask. R.
239 (Q.B.); Mirhadizadeh v. Ontario (1986), 57 O.R. (2d) 441, 33 D.L.R. (4th) 314 (H.C.);
Rosati v. Niagara Falls (City o) (1987), 60 O.R. 474, 35 M.RL.R. 86 (Dist. Ct) Colangelo v.
Mississauga (City ol) (1988), 53 D.L.R. (4th) 283, 39 M.RL.R. 209 (Ont. C.A.) (legislation
valid). See also Re 538745 Ontario Inc. and City of Windsor (1988), 49 D.L.R. (4th) 108 (Ont.
C.A.) (by-law restricting location of adult boutiques not offending s. 15).
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REVUE DE DROIT DE McGILL
[Vol. 34
roles of members of that class.83 An example of the latter might be the
Court’s classification of Ontario’s rent-control legislation as “anti-gouging”
legislation, thereby implicitly labelling the class of “landlords” as “goug-
ers”.84 The word “developer” can also on occasion have a similar pejorative
ring. The former –
that is, differing treatment of members of a same class
–
is present when the class is designated in such a way that there is not
an appropriate concordance, or “fit”, between the class as designated and
the legislative purpose to be attained. This occurs when the class is desig-
nated in either an “underinclusive” or an “overinclusive” fashion. 85
“Underinclusiveness” occurs when the class as defined is too small to
attain the purpose in question. One example relates to discrimination in
the application of by-laws. Applying traditional rules, a decision not to
enforce a zoning by-law against some persons does not preclude its enforce-
ment against others. 86 Under the Charter, however, the discriminatory en-
forcement itself may be held to offend section 15; conversely, the decision
not to enforce it may be so held in that it denies others (neighbours or
commercial rivals) the right to equal protection under the law.
Another example involves spot up-zonings, which, as we have seen,
usually escape the administrative law label of discriminatory. Section 15
could require the courts to be more sensitive to the objections of neighbours
who bear the externalities of the spot zoning (such as noise and litter from
a fast-food operation) or those of other owners of similarly situated prop-
erties who may complain that they were not afforded similar benefit (such
as the so-called “store wars” cases relating to the location of regional shop-
ping centres). 87
Other examples of this second type of freestanding discrimination result
from the class being drawn in an “overinclusive” fashion. Section 15 could
apply to strike down a comprehensive zoning by-law, which has traditionally
83Gold, supra, note 80 at 147. Stereotyping as a possible ground for a section 15 challenge
was accepted by McIntyre J., in the Andrews case at 309, citing Hugessen J.A. in Smith, Kline
& French Laboratories Ltd. v.A. G. Canada (1986), [1987] 2 EC. 359 at 369, 34 D.L.R. (4th)
584 [hereinafter cited to EC.].
84Triassic Holdings Ltd. v. Muirhead (1983), 40 O.R. (2d) 651 (Div. Ct).
85J. Tussman & J. tenBroek, “The Equal Protection of the Laws” (1948-49) 37 Calif. L. Rev.
341. Mr. Justice McIntyre’s discussion of this article in the Andrews case (at pp. 291 ff.) relates
to the similarly situated test (that persons who are “similarly situated be similarly treated”).
He rightly warns against a mechanical application of this test and stresses (at p. 294) the need
to consider the content of the law, its purpose, its impact on those to whom it applies and
those whom it excludes from its application. On the need to place the disposition in its larger
context, see also Turpin v. R., supra, note 72 at 1325. See, supra, the text at note 82.
list of persons against whom no action to be taken no bar in action against another).
86Polai v. Toronto (City o0 (1972), [1973] S.C.R. 38,28 D.L.R. (3d) 638 (existence ofpreferred
87See, for example, Cohen v. Calgary (City o) and Carma Developers, supra, note 70.
1989]
NOTES
1055
been immune from attack on the grounds of discrimination, if its application
to a particular piece of property results in the owner being denied equal
benefit of the law. A good example of this is City of Sillery v. Sun Oil Co.
Ltd.88 In that case, the municipality wished to preserve the residential char-
acter of the shoreline and adopted a general zoning by-law designating all
lands as residential except those lands acually being used for industrial uses,
which were zoned industrial. The property in question, being vacant land
and accordingly zoned residential, was sandwiched between two industrial
lots, so that a residential use, although possible, was highly inappropriate.
Nevertheless, the Court refused to interfere. Under the Charter, the zoning
by-law would arguably be held invalid as discriminatory in that its effect
was to treat similarly situated property differently without sufficient grounds
for the difference –
in other words, the class was designated in an over-
inclusive manner so that there was not a “reasonable fit” between the class
as designated and the purpose to be served.
One last question concerning this section is whether or not it applies
to protect corporations, as well as individuals, from discriminatory action.
Courts have held on a number of occasions that it does not89 because the
legislative history of the English version of the section indicates that the
expression “every individual” was substituted for the wider “everyone” in
early 1981 to make it clear, according to the marginal notes, “that this right
would apply to natural persons only”. 90 However, no similar change was
made to the French version, which retained the word “personne” (which
normally includes “personne morale”), and the marginal notes of the French
version make no reference to any intention on the part of the drafters in
this regard.91 If section 15 does provide additional protection against dis-
criminatory land use decisions over and above that afforded under tradi-
tional rules, as we have suggested, a decision to restrict its scope to individual
applicants would be unfortunate as it is largely a matter of chance whether
land is owned by an individual or a corporation.
II. Restrictions to Property Rights
Every society accepts that rights are not absolute, that some restrictions
must necessarily be placed on the exercise of rights in the interests of other
individuals or groups, or of society as a whole. The advent of the Charter
has not changed this basic need.
88[1964] S.C.R. 552, 45 D.L.R. (2d) 541.
89See, for example, Re NKH Ltd. and Township of Verulam (1987) 40 D.L.R. (4th) 306 (Ont.
H.C.); see also Institute of Edible Oil Foods v. Ontario (1987), 47 D.L.R. (4th) 368 (Ont. H.C.),
and the cases cited therein.
90EIliot, supra, note 6 at 38.
91See generally, G.D. Chipeur, “Section 15 of the Charter Protects People and Corporations
– Equally” (1985-86) 11 Can. Bus. L.J. 304.
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Under both the traditional rules and the Charter, these restrictions are
either reflected in judicial decisions or imposed by the legislature.
A. Judicial Interpretation
1.
Traditional Rules
We have already made reference to the traditional attitude of the courts
to decisions affecting land ownership and use as being limitations on rights
of landowners and the importance attached to a restrictive interpretation
of them. 92 The strict construction approach is thus protective of property
rights.
The opposite approach is to regard such instruments as being adopted
in the public interest and hence to be construed so as to be given effect as
to be construed, if not liberally,93 at least neutrally.94
much as possible –
The liberal construction approach, which we have suggested is invoked more
often in regard to decisions relating to the use of land than to its ownership, 95
is thus restrictive of property rights.
Along the same line, some courts have recently adopted a policy of
deferring where possible to the decisions of specialized agencies, which have
a particular knowledge and experience that courts of general jurisdiction
lack.96 This attitude of “curial deference”, as it is called, favours the up-
holding of administrative land use decisions and, correspondingly, a vali-
dation of restrictions on individual property rights.
2.
The Charter
Despite their entrenchment, rights recognized in the Charter are not
absolute. Their restricted nature is on occasion recognized in the definition
itself, as in section 8 which protects only against “unreasonable” search and
seizure. It can also result from judicial interpretation, as we have already
noted in regard to section 15.97 Courts are loathe, for example, to hold that
92See supra, the text at notes 22 and 55.
93Soo Mills Lumber Co. Ltd. v. Sault Ste Marie (City oj), supra, note 62.
94Bayshore Shopping Centre Ltd. v. Nepean (Township oJ), [1972] S.C.R. 755, 25 D.L.R. (3d)
443; Re Trustees of St. Peter’s Evangelical Lutheran Church and City of Ottawa, supra, note
25.
95See, supra, the text at note 55.
96See, for example, Canadian Union of Public Employees Local 963 v. New Brunswick Liquor
Corporation, [1979] 2 S.C.R. 227, 97 D.L.R. (3d) 417; Re City of Whitehorse and Government
of Yukon (1988), 52 D.L.R. (4th) 749 (Y T. C.A.).
97See, for example, R. v. Century 21 Ramos Realty Inc. (1987), 58 O.R. (2d) 737 at 760-62,
37 D.L.R. (4th) 649 (C.A.) at 672-674, and the cases cited therein.
1989]
NOTES
1057
any distinction, no matter how reasonable, violates section 15 and thus
insist that the distinction be pejorative, or at least unfair and unreasonable,
before holding it to be a violation of the right to equality. The difficulty
with this approach, as the Supreme Court of Canada noted in the Andrews
case, 98 is that if it is pursued with vigour, it leaves a very limited role for
section 1 of the Charter.99
Section 1, which has no counterpart in the American Bill of Rights, is
an explicit recognition of the need for moderation in the recognition of
rights. It reads as follows:
The Canadian Charter of Rights and Freedoms guarantees the rights and free-
doms set out in it subject only to such reasonable limits prescribed by law as
can be demonstrably justified in a free and democratic society.
In suggesting that a limitation or restriction on rights is saved by section
1, the proponents of the provision must show both that the limitation is
“demonstrably justified in a free and democratic society” and that it has
been “prescribed by law”.’ 00
(i) Demonstrably justifiable in a fiee and democratic society
Obviously, legislative authorization does not of itself make a restriction
“demonstrably justifiable in a free and democratic society”, although this
is undoubtedly a factor to be weighed.
Where such a [freely and popularly elected] legislature has clearly and con-
sciously made a deliberate choice, some degree of judicial deference and re-
straint is indicated. That degree will be greatest where the categories are found
in the very text of the legislation and will diminish as they, and the alleged
inequalities flowing from them, become further removed from the expression
of legislative will, either by delegation or indirection. Even where the legislative
will is clear and direct, room will, of course, remain for judicial intervention
to prevent the tyranny of the majority, but the likelihood will surely be greater
where the perceived injustice is the result of inadvertance, inattention or abuse
by subordinates.’ 0′
This approach would suggest a hierarchy of land use controls: those imposed
directly by legislation (such as Quebec’s statutory delineation of the first
9 8Supra, note 72 at 181-82, McIntyre J.
99For a discussion of the relationship between “definitional balancing” and “ad hoc balanc-
ing” (or balancing under s. 1), see S.R. Peck, “An Analytical Framework for the Application
of the Canadian Charter of Rights and Freedoms” (1987) 25 Osgoode Hall L.J. 1 at 21ff.
10The tendency to import a notion of “reasonableness”
into the definition of each right,
thereby reducing the need to refer to s. 1, could result in these requirements, particularly the
second, being overlooked.
‘ISmith, Kline & French Laboratories Ltd. v. A. G. Canada, supra, note 83 at 369, Huggessen
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agricultural region) 10 2 would receive more sympathetic scrutiny than would
zoning by-laws adopted under the authority of enabling legislation; com-
prehensive zoning by-laws, as legislative acts of an elected municipal coun-
cil, would be more favourably received than spot amendments, often
legislative in form alone; spot amendments in turn would benefit, because
of their (admittedly limited) legislative nature, from a presumption in their
favour more than would discretionary decisions by appointed officials.
On a less formalistic level, the “demonstrably justifiable” requirement
implies an identification of the objective or purpose to be served by the
provision in question, a consideration of whether such an objective is ap-
propriate in a free and democratic society, and an evaluation of the rea-
sonableness of the means chosen to achieve it.103 It requires, in other words,
a balancing of purpose and effect. Weak or marginal purposes with significant
negative effects will fall whereas strong purposes may justify more drastic
effects. To return to the City of Sillery v. Sun Oil Co. Ltd.10 4 example, the
purpose of protecting the residential character of a shoreline was laudable,
but the obvious negative effect on the individual owner of a lot zoned
residential sandwiched between two industrial uses would seem out of all
proportion to the purpose to be served.
(ii) Prescribed by law
The second requirement under section 1 is that the restriction in ques-
tion be “prescribed by law”. This was introduced in the Charter specifically
to limit the extent to which rights can be restricted. 10 5 While it has not been
considered as extensively as the preceding requirement, it was invoked by
the Ontario Divisional Court as a ground for striking down Ontario’s film
censorship scheme:
The Charter requires reasonable limits that are prescribed by law; it is not
enough to authorize a Board to censor or prohibit the exhibition of any film
of which it disapproves. That kind of authority is not legal for it depends on
the discretion of an administrative tribunal. However dedicated, competent
and well-meaning the board may be, that kind of regulation cannot be con-
sidered as “law”. It is accepted that law cannot be vague, undefined and totally
discretionary. Any limits placed on the freedom of expression cannot be left
02Act to preserve agricultural land, R.S.Q., c. P-41.1.
103R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295 at 352, 18 D.L.R. (4th) 321, Dickson J.
See also R. v. Oakes, [1986] 1 S.C.R. 103 at 138, 26 D.L.R. (4th) 200 and Andrews, supra, note
72 at pp. 153ff., Wilson J..
104See supra, note 88.
’05Elliot, supra, note 6 at 24.
1989]
NOTES
1059
to the whim of an official; such limits must be articulated with some precision
or they cannot considered to be law.’ 06
In this light, the “prescribed by law” requirement suggests that the
grounds upon which a municipality exercises its land use control powers
must be set out in advance if any potentially discriminatory use of them is
to be justified. This would appear to be done in regard to the more flexible
“permit” (or development control) systems, which the legislatures, fearful
of their potentially discriminatory or arbitrary nature, have surrounded with
a number of explicit checks and balances. In most, if not all, cases, the
grounds upon which an administrative official can exercise discretion are
clearly articulated in the legislation itself or in supporting regulations. On-
tario’s Planning Act, for example, provides that when considering a draft
plan of subdivision, the Minister shall consider: the effect of the develop-
ment on matters of provincial interest; whether it is premature or in the
public interest; its conformity to the official plan; suitability of the land; the
public road pattern; the size and shape of lots; proposed building restrictions;
natural resources conservation; municipal services; schools; park and other
areas; and energy conservation in layout. 10 7 It was probably with this in
mind, although the matter was not specifically referred to, that the Court
in Re Brown and City of Vancouver’0 8 placed so much emphasis on the
legislative requirements, the content of the official plan, and related regu-
lations and guidelines in deciding that adoption of a development-by-permit
system for an area in Shaunessy did not offend section 15 of the Charter.
On the other hand, more traditional spot zoning might be less easy to
support in this regard in that the statutes themselves are usually less detailed
in their requirements. They were drafted with less discriminatory, compre-
hensive or general zoning by-laws in mind, and the need to surround the
exercise of an essentially legislative jurisdiction by a democratically elected
body with a network of checks and balances was less apparent. This problem
is particularly acute in Ontario where the Ontario Municipal Board has
interpreted and applied the Court of Appeal’s decision in Re Hopedale and
Town of Oakville’0 9 as an absolute prohibition against the formulation of
1G6Re Ontario Film and Video Appreciation Society and Ontario Board of Censors (1983),
41 O.R. (2d) 583 at 592, 147 D.L.R. (3d) 158 (Div. Ct) (per curiam); aff’d (1984), 45 O.R. (2d)
80, 5 D.L.R. (4th) 766 (C.A.). See also Peck, supra, note 99 at 54ff.
1078.O. 1983, c. 1, s. 50(4).
108(1986), 24 D.L.R. (4th) 434 (B.C.S.C., in Chambers). Similarly, the holding by-law mech-
anism at issue in Soo Mills and Lumber Co. Ltd. v. Sault Ste-Marie (City ol), supra, note 62,
would probably also be upheld in an application under the Charter.
109[1965] 1 O.R. 259 at 265, 47 D.L.R. (2d) 482 (C.A.). The Court in that case in fact said:
“To lay them down as principles by which the Board would be guided may therefore be both
reasonable and wise but to say that the appellant must comply with them before the Board
will allow the application is clearly wrong and the Board, if it so fettered its jurisdiction, would
be in error”, McGillivray J.A.
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general principles by which it and parties to land use controversies could
be guided. 110
B. Legislative Override
1.
Traditional Rules
Under a regime of absolute parliamentary sovereignty, as existed in
Canada before 1982, the traditional protection afforded to private property
can be specifically overridden by statute. For example, statutory restrictions
can be placed on the extent to which non-residents or, more recently, anyone
at all might acquire prime agricultural or recreational land; I ‘ property can
be expropriated by statute for a private purpose or without any compen-
sation;112 statutes can authorize a municipality to prohibit any use of private
land;1 3 or they can provide immunity from attack on substantive grounds” 14
(although courts generally look with disfavour on such provisions).
We do not mean to suggest that each or any of the above statutory
examples necessarily infringes the Charter, however, they serve to highlight
the advantage of a constitutional recognition or “entrenchment” of rights.
Such rights are no longer vulnerable to a legislative override as a matter of
course. Quite the contrary, the override legislation would itself be overridden
by the Charter provisions which it contravenes.
2.
The Charter
Somewhat surprisingly, then, the Charter attenuates the advantage of
entrenchment by specifically admitting of a legislative override. This is
found in section 33, which provides:
(1) Parliament or the legislature of a province may expressly declare in an Act
of Parliament or of the legislature, as the case may be, that the Act or a provision
IOSee, for example, Re City of Guelph RestrictedArea By-Law (1977)-9960 (1979), 9 O.M.B.R.
353 (O.M.B.) at 353-54.
McGill L.J. 928 at 941-51.
‘1J.M. Glenn, “‘intervention de l’ttat dans ragriculture: Un aperqu lgislatif’ (1983) 28
” 2See, for example, Act respecting Les Proprietes Cite Concordia Limite – Concordia City
113See, for example, Planning Act, 1983, S.O. 1983, c. 1, s. 34(3) (authorizing prohibition of
Properties Limited, S.Q. 1969, c. 126.
construction on land with steep slopes or subject to flooding).
14Act to preserve agricultural land, R.S.Q., c. P-41.1, s. 95: “No recourse may be exercised
against the Gouvernement, the commission, a municipal corporation or one of their members
or functionaries solely because a lot has been included in … an agricultural zone or has been
excluded therefrom or merely because an authorization or a permit has been granted or refused
under this act.”
19891
NOTES
1061
thereof shall operate notwithstanding a provision included in section 2 or
sections 7 to 15 of this Charter.
(2) An Act or a provision of an Act in respect of which a declaration made
under this section is in effect shall have such operation as it would have but
for the provision of this Charter referred to in the declaration.
This uniquely Canadian “notwithstanding”, or nonobstante, clause first ap-
peared in a later draft of the Charter and was included as the price of
substantial provincial support for the notion of entrenchment of rights.
However, it differs from a traditional legislative override in three particular
respects, each of which is designed to limit the scope of the clause. Firstly,
whereas any unentrenched right may be limited by an exercise of parlia-
mentary sovereignty, section 33 specifically excludes from its ambit dem-
ocratic rights (section 3 to 5) and mobility rights (section 6). Secondly, a
traditional override of rights may be implicit, although the legislative en-
actment itself must be clear, whereas an exercise of the notwithstanding
clause requires an overt act: the override clause itself must specifically men-
tion the rights being derogated from. This is to ensure that the decision to
derogate is made consciously and publicly, after enlightened and serious
examination.”15 Finally, a traditional override, once effected, is perpetual in
the sense that it lasts until the overriding statute itself is repealed, whereas
a section 33 override is subject to an automatic sunset clause of five years,
or such earlier date as may be specified in the declaration. Admittedly, the
notwithstanding declaration may then be reenacted (subject to the same
obligatory sunset clause) but only after similar public scrutiny and debate.
In this way, it was hoped to limit the occasions on which governments resort
to the override clause.
Conclusion
The thesis of this paper has been that the Charter, as drafted, has only
a limited effect on a municipality’s powers to control the use of land and
that any specific entrenchment of property rights would not particularly
change this result.
Its effect is limited, firstly and most obviously, because the Charter does
not specifically recognize a right to property, so that whatever protection it
does afford is indirect. At present, it guarantees a right to property only to
1iSBut see A. G. Quebec v. La Chaussure Brown’s Inc. [indexed sub nom Ford v. Quebec
(Attorney General)], [1988] 2 S.C.R. 712, 54 D.L.R. (4th) 577, holding that a s. 33 declaration
is sufficiently express if it simply refers by number to the provision or provisions of the Charter
to be overridden, rather than specifying in words the particular rights or freedoms to be ov-
erridden, as the Quebec Court of Appeal had insisted upon in Alliance des professeurs de
Montreal v. A. G. Quebec (1985), 21 D.L.R. (4th) 354, 9 C.C.C. (3d) 268 (Que. C.A.); leave to
appeal to S.C.C. granted 30 Sept. 1985:1985, 21 D.L.R. (4th) 354n, 21 C.C.C. (3d) 273n.(S.C.C).
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the extent necessary to ensure the protection of the right to life, liberty and
security of the person under section 7, for example; or it affords property
owners some additional protection against discriminatory treatment under
section 15. Its effect is limited, secondly, because a municipality’s powers
are already restricted by the traditional rules of judicial review based in the
notion of ultra vires and, where invoked, in the strict construction approach
to statutes and other provisions interfering with property rights.
Moreover, specific entrenchment of property rights in the Charter –
whatever its symbolic value (or nuisance factor, depending on one’s point
of view) – would not particularly change the present situation, for three
reasons. Firstly, the presence of section 33, the notwithstanding clause, limits
whatever value entrenchment might have, in that it reaffirms the traditional
role of parliamentary sovereignty in the Canadian constitution. Secondly,
section 1, the reasonable limits clause, underlines the need for a balance
between individual liberties and institutional restraints, a balance which is
at the heart of the traditional rules for judicial review in the field of land
use planning. Thirdly, the advent of the Charter has had the effect of en-
hancing the status of other human rights instruments which recognize rights,
including the right to property, not contained in the Charter. The right to
property is thus afforded a quasi-constitutional protection, and the need for
its entrenchment in the Charter is less pressing.
A final observation can perhaps be made. The protection of rights,
whether entrenched in a Charter or not, is only as strong as public opinion
allows. Any constitutional regime can be made to accomodate what a society
is prepared to tolerate.1 16 As a noted American jurist has put it:
Liberty lies in the hearts of men and women; when it dies there, no constitution,
no law, no court can save it; no constitution, no law, no court can even do
much to help it. While it lies there, it needs no constitution, no law, no court
to save it.II7
“6Despite the provisions of the American Bill of Rights, for example, Japanese-Americans
fared no better during the Second World War than their Canadian counterparts. See P. Irons,
Justice at War: The Story of the Japanese-American Internment Cases (New York: Oxford
University Press, 1983).
“7Learned Hand, Spirit of Liberty, 3d. ed.(Chicago: University of Chicago Press, 1960) at
190.
