St. Charles Enterprises Ltd. et al. v. Winnipeg (City), 2015 MBCA 20

Citation: St. Charles Enterprises Ltd. et al. v. Winnipeg (City), 2015 MBCA 20 Date: 20150220 Docket: AI14-30-08245 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Marc M. Monnin Mr. Justice William J. Burnett Mr. Justice Christopher J. Mainella BETWEEN : ) J. A. Kagan and ST. CHARLES ENTERPRISES LTD. ) A. D. F. Sain and 2221969 MANITOBA LTD. ) for the Appellant ) (Applicants) Appellants ) D. A. M.

Pambrun ) for the Respondent - and - ) ) Appeal heard and ) Decision pronounced: THE CITY OF WINNIPEG ) February 6, 2015 ) (Respondent) Respondent ) Written reasons: ) February 20, 2015 MONNIN J.A. (for the Court): [ 1 ] At the end of the hearing of this appeal, we advised counsel the appeal would be dismissed with costs, and brief reasons to follow. These are those reasons. [ 2 ] The applicants, the previous and current owners of the St.

Charles Hotel situated in downtown Winnipeg, Manitoba, appeal from a dismissal of their application to remove a notice of designation as an historical building from the hotel’s title and a request that the hotel be removed from the City of Winnipeg, revised by-law No. 1474/77, The Historical Buildings By-law (2 February 1977), at

Schedule “A” (the By-law ). [ 3 ] The appeal turns on the

interpretation of amendments to s. 157.1 of the City of Winnipeg’s (the City) governing statute, The City of Winnipeg Charter , S.M. 2002, c. 39 (the Charter ), and more particularly subs. (4)(

b) of that

section which required the City to register a notice within one year of the coming into force of the

section if a building was listed on the designation

schedule as an historical building. The City did not do so until approximately two months after the date that the notice should have been registered. [ 4 ] The application judge, therefore, had to consider whether the

section was mandatory or directory and, if directory, what was the effect of non-compliance. The application judge determined that the provision was not mandatory, but directory. He also concluded that the consequences of failure to comply were minor and did not prejudice the previous or current owners in the circumstances, and allowed the notice to remain in place. He relied on this court’s decision in B.W. v. Child and Family Services of Winnipeg , 2009 MBCA 95 , 245 Man.R. (2d) 186, whereby Hamilton J.A. noted that (at para. 38): The object of the legislation in question and the effect of the ruling are crucial factors for determining whether a provision is mandatory or directory. ….

[ 5 ] The appeal raises two issues, namely: a. whether the application judge was correct in concluding that the word “must” in s. 157.1(4) was directory as opposed to mandatory; and b. whether he exercised his discretion properly in refusing to order the Registrar General of Winnipeg Land Titles Office (WLTO) to remove the notice from title and to order the City to remove the property from

Schedule “A” of the By-law . [ 6 ] We are all of the view that the application judge was correct in holding that, giving due consideration to the object and purposes of the legislation and the By-law as well as the effect of his ruling as required by our decision in B.W. , the requirement to file notices with the WLTO under s. 157.1(4)(

b) is meant to be directory and not mandatory.

In our view, the amendments brought by s. 157.1 encompass the larger public purpose of the preservation of historical buildings and not just the mechanism by which notice should be registered with the WLTO. [ 7 ] At the hearing of the appeal, counsel for the applicants raised additional sections of the Charter , namely s. 4 , which provides that a by-law or resolution of council that is inconsistent with an enactment in force in the Province is of no effect to the extent of the inconsistency, and s. 7(2) which provides that when the City has the power to act, it must do so subject to any procedural requirements that apply to that power and the limits on the power contained in the specific provisions of the Charter .

Consequently, the applicants argue that once the period set out in s. 157.1(4)(

b) had elapsed, the City no longer had the power to register a notice with the WLTO. [ 8 ] As to the applicability of s. 4 of the Charter , we see no inconsistency between the By-law and the Charter . As to s. 7(2), in our view, it is a

section of general application meant to explain the limitations on the powers of the City as conferred by s. 7(1). It is of no assistance to the statutory

interpretation of the effect of s. 157.1(4)(

b) as to whether that

section is mandatory or directory. We do not accede to that argument. [ 9 ] Following upon that finding, we find no error in the application judge exercising his discretion that the designation should not be removed in the circumstances of this case where the previous owner was the party who requested that the hotel be designated as an historical building and there being no evidence of any prejudice to the applicants or third parties occurring within the date when the notice should have been filed and when it was.

As noted by this court again in B.W. (at para. 47 ): The two most crucial factors for the courts to consider when exercising their discretion are the extent of the non-compliance and the extent of any prejudice suffered as a result of it. [ 10 ] In this case, as found by the application judge, the delay was not significant and, as conceded by counsel for the applicants, there was no prejudice to the owners. [ 11 ] It may well be that, in other circumstances, for example where a delay has been undue or prejudice has occurred either to the property owner or a third party by the failure to comply, a different result may ensue.

However, on the facts of this case, we are of the view that there are no grounds for appellate intervention and the appeal is dismissed with costs to the City. J.A. J.A. J.A.