Bulmer v. The Queen

P

*Oct

(CLAIMANT) ..........................

APPELLANT; AND

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HER MAJESTY THE QUEEN (RES- .

ESPONDENT. PONDENT.

.........................

ON APPEAL FROM THE EXCHEQUER COURT OF CANADA. THE CHIEF JUSTICE.-This is an appeal from a judgment of the Exchequer Court, by which damages to the extent of $5,070 were awarded to the appellant, who now by this appeal seeks to have that amount largely increased.

The crown has also instituted a cross appeal insist- TE ing that the appellant was not entitled to recover any damages.

The cross appeal, however, is not regularly before the court, the notice required by general orders Justice. 62 and 63 not having been given in due time, and we must therefore disregard it, and confine our decision to the principal appeal exclusively.

The facts of the case are stated in the judgment the Exchequer Court which is reported in the 3rd volume of the Exchequer Reports (p. 184) and to the statement I refer.

I am of opinion that the appeal must be dismissed and that upon the ground that the claimant, if entitled to recover any damages, was certainly not entitled to recover more than the judgment he appeals against has given him.

The orders in council authorizing the Minister of the Interior to grant the licenses to cut timber on the timber berths in question did not, any principle which has been established by authority, or which I can discover, constitute contracts between the crown and the proposed licensees. These orders in council, as similar administrative orders in the case of sales of crown lands in the provinces of Ontario and Quebec have always been held to be, were revocable by the crown until acted upon by the granting of licenses under them. They embodied no agreement of which specific performance could be enforced.

They were mere authorities by the Governor in Council to the minister upon which the latter was not bound to act, but might act in his discretion.

This is apparent from the statutory enactment applicable to these orders in council and the licenses to be issued under them.

I refer to sections 49 and 50 of 46 Vict. cap. 17.

The Dominion Lands Act of 1883 section 49 is as follows:- None of the ten timber berths in respect of which this claim is made were put up to sale by auction, but were granted under the latter part of the section, under subsection 2 which it is not material to set out.

I am at a loss to conceive any language better adapted to indicate that the order of the Governor General in Council was a mere authority which might or might not be acted upon by the minister, and which the Governor General in Council might at any time recall before it was executed by a lease or license, than that in which these clauses are expressed. Upon this ground I must hold that there was no breach of contract in respect of the four berths limits for which orders in council were issued but for which no leases or licenses were issued.

It must, therefore, depend upon the construction and effect of the leases themselves whether there has been any breach of contract.

Upon this head it is contended in the first place that there was a binding legal obligation upon the crown to renew these leases from year to year and that there was a breach of this obligation in refusing to renew for the year 1886 the six leases or licenses which had been granted for the year 1885.

I am of opinion that the appellant also fails to make good this proposition.

The leases were granted under section 50 of the act of 1883, which is in the following words:- There were no conditions of sale referring to any of these leases.

The timber berths for which they were granted were not in any case put up to sale by auction. It does not appear that any tender embodying any proposals for a renewal was ever made by the appellant or those through whom he claims title. No provision relating to renewal is to be found in -the leases.

These instruments on their faces state that they are issued under the authority of the act of 1883 and of the order of the Governor General in Council. The order in council recommends that the license be granted under the conditions of the regulations approved by order in council of the 8th March, 1883. Although these regulations were actually not made under the act of 1883, but under the former act of 1879, they may be assumed to have been re-adopted by the Governor General in Council for the purposes of the later act. The only regulation which has any reference to renewal is the third, which provides that:- Then, assuming this provision to be incorporated in the order in council and therefore by force of the statute to apply to the leases in question, I see nothing in it making it obligatory on the crown to grant renewals. I construe the 50th clause of the act as meaning that renewals are to be governed by the terms of the orders in council authorizing leases. Then reading this regulation as though it had been embodied in the orders in council in pursuance of which these leases Justice.

were granted, it confers no absolute right of renewal. It is in terms as clearly facultative and permissive as language could make it. The license it says " may " be renewed, provided the Minister of the Interior shall be satisfied the conditions have been complied with, and in the absence of certain other contingencies but upon such terms as to " annual rental and royalty to be paid therefor as may be fixed by the Governor General in Council."

This, therefore, if we are to construe words according to their obvious meaning and not to wrest them from their natural signification in order to reach a construction unfavourable to the crown, means that the right of renewal is to be optional with the crown; to depend on the judgment of the Minister of the Interior in the first place; and the renewal, if there is to be one, is to be on such terms as the Governor General in Council prescribes and therefore necessarily in the discretion of the latter authority. Manifestly the object of this regulation is administrative and departmental only, intended as a guide and authority to the minister and departmental officers, and not for the purpose of creating any obligation on the part of the crown towards the licensee. This disposes of the appellant's claim to a breach contract in respect of refusals to renew.

Next we have the claim that there was a constructive eviction and failure of title which constituted a breach of certain covenants or stipulations which, though not expressed, are by law to be implied in the licenses which were granted and were actually current in 1884 and 1885.

This contention is founded upon the clause iii the license by which the Minister of the Interior confers upon the licensee " full right, power and license to take and keep exclusive possession of the said lands except as thereinafter mentioned for and during the period of one year from the 31st of December, 1883, to the 31st December, 1884, and no Justice. longer."

This it is said, and no doubt correctly, is in law a lease for one year of the lands comprised in the license.

From this it is argued that it follows that the same covenants for good right and title to make the lease and for quiet enjoyment are to be implied as in the case of an ordinary lease of land between subjects in which the operative word " demise " or its equivalent is used.

This I at least doubt.

In Robertson v. The Queen (1) I expressed the opinion that no covenant was implied in the fishery license in that case; that, however, was not a lease of land but a mere grant or license for a right of several fishery, and in the case of a grant of such a right no authority can be found for inferring a covenant.

There is indeed a dictum of no less authority than Tindal C. J. the other way who says that such an implication only arises in connection with a lease of land, and it has been decided that in a lease of personal property there is no such implication. In Bacon's abridgement, covenant B., it is said:

That, however, would not be conclusive here, for undoubtedly this license does contain a lease of the VE land for a year, though such a lease is of course merely subordinate and incidental to the principal object which the crown and the licensee both had in view, Justice. the cutting down and acquisition of the timber. It is, however, well established that all crown grants are to be construed most favourably for the crown, and this doctrine has been adopted in the United States where the same rule of construction is applied in favour of the government to exclude implications of terms not expressed and not involved as a necessary consequence of the words actually used. I refer on this point to the case of the Mayor of Alleghany v. The Ohio & Pennsylvania Railroad Co. where it is said, referring to a grant by the commonwealth:

The tendency of modern decisions, moreover, is against the implication of provisions in a deed. I find that in a case decided after Hart v. Windsor that of Messent v. Reynolds Creswell J. expresses the opinion that these covenants are only to be implied in a lease when the word " demise " is used, but Hart v. Windsor was not cited, and I must concede that the latter,authorities, especially Mostyn v. West Mostyn Coal Company (4) are the other way.

On the whole if I were compelled to decide this question of law, I should be inclined to hold that the crown was not bound by any implied covenant to be read into these licenses. It is, however, really not necessary to come to any conclusive opinion upon this point. By not presenting its cross appeal in due time the crown has lost the right to attack the judgment of the Exchequer. That judgment must therefore stand for the amount awarded by it to the claimant, and restricting his right to recover damages to the licenses actually existing and in force at the time of the constructive eviction, he would not be entitled to recover more than he actually paid for rentals and bonuses for that current year or for the years 1884 and 1885, an amount which would fall far short of that for which judgment has been rendered.

As regards the measure of damages the authorities cited by the learned judge of the Court of Exchequer in his very able judgment demonstrate conclusively that this claimant, who applied for and took his licenses with his eyes open as regard the notorious uncertainty of the title which the Dominion Government claimed, could not recover more than the amount he had actually paid the crown.

I am of opinion that the appeal must be dismissed, and the cross appeal also ; the latter with costs.

The case is one of some hardship and for that reason

I am disposed to give no costs to the crown, who, in my judgment ought not to have granted the licenses. in question.

Appeal dismissed without costs.

Cross-appeal dismissed with costs.