Date: 19990623
Docket: T-53-90
Ottawa, Ontario, June 23, 1999.
Present: THE HONOURABLE MR. JUSTICE DENAULT
Between:
MARGUERITE PELLETIER and
GISÈLE DE MADDELEIN,
Appellants,
- and -
GAZODUC TRANS-QUÉBEC ET MARITIMES INC.,
Respondent,
- and -
THE HONOURABLE MINISTER OF ENERGY, MINES
AND RESOURCES,
Mis-en-cause,
- and -
THE SAID GISÈLE DE MADDELEIN,
Appellant in continuance of suit.
JUDGMENT
The Court:
| ". dismisses the appeal of the appellant in continuance of suit; |
| ". affirms the decision of the Pipeline Arbitration Committee on July 17, 1989; |
| ". orders the appellant in continuance of suit to pay the cost of this appeal. |
| PIERRE DENAULT JUDGE |
Certified true translation
Bernard Olivier, LL. B.
Date: 19990623
Docket: T-53-90
Between:
MARGUERITE PELLETIER and
GISÈLE DE MADDELEIN,
Appellants,
- and -
GAZODUC TRANS-QUÉBEC ET MARITIMES INC.,
Respondent,
- and -
THE HONOURABLE MINISTER OF ENERGY, MINES
AND RESOURCES,
Mis-en-cause,
- and -
THE SAID GISÈLE DE MADDELEIN,
Appellant in continuance of suit.
REASONS FOR JUDGMENT
DENAULT J.
[1] The appellant appealed from a decision of the Pipeline Arbitration Committee on July 17, 1989 which set at a few hundred dollars the compensation to which she was entitled as a consequence of the expropriation of part of her land to build a pipeline transporting natural gas between Boisbriand and Lévy-Lauzon.
[2] The Committee considered that the best use of the property at the time the expropriating party took possession in September 1981 was for farming or forestry. The appellant maintained that her land should have been assessed as a gravel and sand pit, which would have justified much greater compensation, and that the Board made errors in its decision justifying intervention by this Court.
[3] Under s. 101 of the National Energy Board Act, R.S.C. 1985, c. N-7, an appeal from a decision by an Arbitration Committee can only be brought on a question of law or jurisdiction. In such a case the appeal to the Court is narrowly based,1 as the latter can only review the legality of the decision, not its merits, and must give the benefit of the doubt to the body responsible for the decision, especially when the latter enjoys expertise in the area, as is the case here.2
[4] Counsel for the appellant3 made the same arguments which he made and which were all reviewed by the Arbitration Committee, namely that (a) at the time possession of the appellant's land was taken on September 24, 1981 she was operating a gravel pit and a sand pit; (b) that she held vested rights therein; and that (c) although the company to which she had assigned her rights of exploitation in 1978 had failed to obtain the permits required for such exploitation despite having undertaken by contract to obtain them, the sand and gravel had a clear value regardless of legislation and regulations.
Whether the appellant was operating a gravel and sand pit on September 24, 1981
[5] Briefly, the Arbitration Committee first considered the evidence that although the appellant's predecessors, through a third party, had exploited a gravel quarry from 1958 to 1962, there was no conclusive evidence to indicate such exploitation between 1962 and 1978 and that even between 1978 and 1981 the contract concluded with Carrières et Excavations St-Roch Inc. did not suggest that there was actual exploitation.4 In this connection, the Court could not find from reading the evidence before the Arbitration Committee any significant errors which it had made in assessing the facts. It is true that the evidence disclosed sale of certain quantities of sand in small amounts between 1975 and 1978.5 In Champagne v. Tribunal d'appel en matière de protection du territoire agricole, [1992] R.P.T.A. 45 (C.Q.), at 47, the Court of Quebec held that: [TRANSLATION] "to constitute an error of law, the assessment of the facts by the appellate tribunal must be such that it leads to an unreasonable decision".
[6] The Court considers that the Arbitration Committee did not make such an error in the case at bar. The Arbitration Committee properly applied the ruling by the Quebec Court of Appeal in Aylmer (Ville d') v. Quesnel, JE 88-916 (C.A.), at p. 8, that [TRANSLATION] "exploitation means 'making use of', 'profiting from' . . .". The Court of Appeal had first noted that [TRANSLATION] "small quantities of sand removed or sold . . . represented at most minimal use the return on which depended much more on chance than on any genuine intention by the occupants to proceed with and continue exploitation of the quarry as such". In short, the signature of the contract with Carrières et Excavations St-Roch Inc. in 1978 did demonstrate an intention by the appellant and her mother (Marguerite Pelletier) to proceed with exploitation of the quarry. However, it also appeared from the testimony of Gilles Savoie, a director of Carrières et Excavations St-Roch Inc., that he was more interested at the time in exploiting the quarry adjoining that of the appellant, owned by estate Lauzon-Prévost, and that he never paid the appellant the minimum amount of $5,000 a year as provided in clause 3 of the contract (see note 4), as he never began exploiting the gravel pit. In short, it was not unreasonable for the Arbitration Committee to conclude in the case at bar that the appellant was not exploiting a sand pit between 1978 and 1981.
Whether the appellant enjoyed vested rights in exploiting a gravel and sand pit
[7] It will be recalled that from the evidence the appellant's predecessors had exploited a gravel quarry from 1958 to 1962. There was no legislation controlling such an activity at the time. On December 21, 1972 the Environment Quality Act was adopted.6 Section 22 of that Act requires anyone undertaking to operate an industry to obtain a certificate of authorization from the Director of Environment Protection Services. On August 5, 1977 the regulations regarding quarries and sand pits came into effect.7 Under s. 2 of those regulations, "No person may undertake to operate a pit or quarry . . . without a certificate of authorization by the Director, in accordance with section 22 of the Act". Additionally, the Act to Preserve Agricultural Land8 was adopted on December 22, 1978. By s. 26 of that Act, no person may use a lot in a designated agricultural region for any purpose other than agriculture without the authorization of the Commission.
[8] It goes without saying that this new legislation significantly limited the right to free exploitation of a gravel or sand quarry. In the case at bar, insofar as the evidence, as we have seen earlier, allowed the Arbitration Committee to conclude that the appellant did not exploit her quarry between 1962 and 1978, it was not unreasonable to also conclude that the exploitation had been abandoned and that no vested right could arise in opposition to the legal limitations which appeared after 1962.
[9] On the one hand the appellant, who had the burden of showing vested rights existed justifying derogatory use, did not present evidence that her quarry continued to be exploited. On the other hand, the evidence did show that exploitation of the quarry ceased for a long enough period " from 1962 to signature of the contract in 1978 " for an intent to abandon to be presumed.9 The Commission for the Protection of Agricultural Territory had in any case on November 2, 1979 denied Carrières Excavations St-Roch leave to use the appellant's lots for purposes other than agriculture (exploitation of a gravel pit), on the ground that the gravel pit had not been used for about 25 years.10
Whether the sand and gravel had a clear value regardless of legislation and regulations
[10] Analysis of this point might lead the Court to distinguish in theoretical terms between the possible or probable use of part of the land subject to expropriation. In the circumstances, however, the Court does not intend to go into the matter as in any case the appellant submitted no evidence of the quantities of sand or gravel contained by this quarry and not even an approximate statement of its value.
[11] For these reasons, the appeal is dismissed.
| PIERRE DENAULT JUDGE |
Ottawa, Ontario
June 23, 1999
Certified true translation
Bernard Olivier, LL. B.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| COURT No.: T-53-90 |
| STYLE OF CAUSE: MARGUERITE PELLETIER ET AL. v. |
| GAZODUC TRANS-QUÉBEC ET |
| MARITIMES INC. ET AL. |
| PLACE OF HEARING: MONTRÉAL, QUEBEC |
| DATE OF HEARING: JUNE 17, 1999 |
| REASONS FOR JUDGMENT BY: DENAULT J. |
| DATED: JUNE 23, 1999 |
APPEARANCES:
| GISÈLE DE MADDELEIN FOR THE APPLICANT |
| PIERRE PAQUET FOR THE RESPONDENT |
SOLICITORS OF RECORD:
| GISÈLE DE MADDELEIN FOR THE APPLICANT |
MONTRÉAL, QUEBEC
| POILIOT, MERCURE FOR THE RESPONDENT |
MONTRÉAL, QUEBEC
__________________1 Yves Ouellette, Les Tribunaux administratifs au Canada - Procédure et preuve, Les Éditions Thémis, 1997, p. 374.
2 Le contrôle judiciaire de l'action gouvernementale, Recours Québec 1999, Publications CCH Ltée, p. 1409.
3 The appellant was not accompanied at the hearing by her counsel, who was in hospital. However, she insisted on going ahead and essentially pleaded the same arguments made by her counsel in his statement of the points for argument.
4 Clause 3 of the contract stated: [TRANSLATION] "At the time the purchaser shall commence exploiting the gravel pit, it guarantees the sellers a minimum of $5,000 annually payable in five instalments of $1,000 each on the 15th of August, September, October, November and December". The evidence was that these amounts were not paid.
5 $407 in 1975 (p. 297 of appeal record), $63 and $393 in 1977 (pp. 293 and 295) and $249 in 1978 (pp. 292 and 294).
7 O.C. 2521-77, August 3, 1977, Quebec Official Gazette, August 17, 1977, No. 31, p. 3931.
9 See Charron Excavation Inc. v. Ville de Blainville, JE 78-468 (C.A.), No. 09-000359-778, at 12, and Val Bélair (Ville de) v. Denis, JE 93-1101 (C.S.), No. 200-05-000107-917 (appeal dismissed and application for leave to appeal to the Supreme Court dismissed).