The Mining and Lands Commissioner in the matter of the Conservation Authorities Act

And in the matter of

An appeal against the refusal to issue permission to construct a commercial building on lots 7, 8, 9, 10, 11, and 12, on Registered Plan Number 117 in the Town of Orangeville in the County of Dufferin.

Between:

Credit Mountain Land Co. Limited
Appellant

and

Credit Valley Conservation Authority
Respondent

P. Starr, president of the appellant, for the appellant.
R. I. R. Winter for the respondent.

The appellant appealed to the Minister of Natural Resources from the refusal of the respondent to grant permission under O. Reg. 211/73 to construct a commercial building on lots 7 to 12 inclusive, on Registered Plan 117 in the Town of Orangeville in the County of Dufferin. The power and duty of hearing and determining the appeal was assigned to the Mining and Lands Commissioner by O. Reg. 90/78.

The subject lands consist of a block of six lots lying on the easterly side of the Townline as shown on Plan 117. Lots 7 to 11 have fifty feet of frontage. Lot 12 has sixty feet of frontage. The total frontage is 310 feet. The depth of the lands is 184.12 feet. Plan 117 is a subdivision of part of Plan No.138 and the subject lands formed part of Lot 4, Block 1, Plan 138.

In the early sixties the appellant purchased lots 4 to 8 on Block 1, Plan 138. It caused, pursuant to some kind of permit issued by the Town of Orangeville, fill to be placed on its lands with a view toward future development of the land for commercial purposes. The purchased land contained approximately 3.5 acres. In a state of nature it was low lying land on either side of a tributary flowing easterly into the Credit River. The regional floodplain of the Credit River, having a regional flood elevation of 1,344.5 feet, includes the bed of the tributary and extends above the subject lands. The floodplain appears to be somewhat contained by the Townline and Broadway Street. The land between the subject lands and the Credit River was fairly level varying only a matter of one foot in elevation.

The placing of fill raised the elevations of parts of the subject lands above the regional flood line. In 1973 the respondent amended O. Reg. 211/73 to extend the prohibition of the placing of fill without permission into this portion of the watershed of the Credit River and Starr, on behalf of the appellant, commenced negotiations with the respondent in respect of his proposed development. He consulted with Triton Engineering Services Limited, hereinafter referred to as Triton, who prepared a report dated November 12, 1973 in respect of the storage capacity aspect of the proposed development of the lands of the appellant. This report was prepared following consultation with officials of the Conservation Authorities Branch and of the respondent and subsequently approved on behalf of the respondent through the issue of a document that was filed as Exhibit 2.

There has been an issue between the parties as to whether this document constitutes permission within the meaning of the regulation and more significantly the term, if any, of the permission. In this regard it is noted that the clause dealing with the term reads as follows: "During the period of after approval 1973 to after approval 1973." It is not surprising that there are differences of opinion as to the length of the term of the document. Suffice it to say that the provision is so devoid of meaning that no reliance could be placed upon it.

More significantly the document was issued subject to a number of conditions. Firstly, the document acknowledged that fill had been placed on the lands prior to the fill regulation coming into effect.

Paragraph 2 of the letter attached to the permit reads as follows:

2. The Committee approves of each of the three alternatives provided in the report. However, prior to construction of buildings on any of the three sites, a site plan must be forwarded to this office showing the alternative chosen, the dimensions of the building, and the dimensions of the parking/flood storage zone.

Should grades be tampered with in the future, this site plan will serve as the Authority's approved proposal.

The appellant subsequently caused a plan of subdivision to be registered as Plan 117. One of the conditions of the approval by the Ministry of Housing was to the effect that any site plans would require the approval of the local municipality and the respondent. This plan was registered on September 17, 1975. Subsequently, the appellant developed parts of the new subdivision and applied for permission under O. Reg. 211/73. In the summer of 1977 a number of site plans were discussed with officials of the respondent who took objection to the proposals. After a number of submissions a formal application was made on September 23, 1977 accompanied by a site plan filed as Exhibit 20. Following a hearing by the executive committee approval of the formal application was refused and the appellant appealed the refusal.

In addition to refusing the application the respondent indicated that consideration would be given to a revised application with specified amendments. A revised application with a site plan filed as Exhibit 21 was submitted on November 15, 1977 to the respondent and permission was granted by the respondent on December 29, 1977 as Permit No. 572P. The appellant has not proceeded with construction pursuant to this permission and requested the tribunal to grant permission in accordance with the site plan attached to its application of September 23, 1977 and filed as Exhibit 20. In his submissions on behalf of the appellant Starr submitted that the document issued in 1973 was a permit and continued to be valid and that Exhibit 20 was a site plan in conformity with this permission and he further submitted that there is an insignificant difference between Exhibits 20 and 21 with respect to storage capacity. He also alleged that due to delays his company had lost considerable monies. However, while a number of letters produced made these allegations there was no proper evidence of such losses.

The significant evidence of the respondent was that the approved site plan corrected two concerns that fall within the jurisdiction of the respondent. The two areas of concern are erosion i.e., conservation of land and constriction of the floodplain, i.e. control of flooding. The evidence of Mr. George Papadopolous, a professional engineer with experience in the relevant field, indicated that by moving the proposed building a further distance of six feet to the north the constrictive effect of the proposed building is reduced. A wider area is provided for flood waters to flow through and the interference with a cross-section, which is the basis for considering matters of constriction, would be reduced. With respect to erosion, shallower slopes are made possible and the risk of erosion to the subject lands and the movement of the fill onto adjoining lands is reduced.

An examination of the site plans indicates that the proposed building is 270 feet in length utilizing the complete length of the six lots with the exception of forty feet. The proposal of the appellant was to leave a ten foot side yard at the south limit and a thirty foot side yard at the north limit which is along the realignment of the tributary. It was proposed to sod the southerly ten feet and the portion to the west or in front of the southerly end of the building. It was proposed to sod the northerly five feet of the subject lands and leave a twenty-five foot area for ingress and egress to and from the parking area at the back or to the east of the proposed building. In addition parking would be provided on the northerly three quarters of the land between the building and the west boundary. The width of the proposed building is approximately fifty-five feet. At the southerly end a projection in a westerly direction extends approximately thirty-five feet for a distance of approximately fifty feet. This creates an L-shaped building with the southerly part being wider than the remainder of the building.

With reference to this wider portion of the building it may be noted from the site plans that the existing elevation of the northerly part of the subject lands is fairly close to the regional floodline but the greater part of the southerly portion is situate in an area where the elevations reduce to 1,341 feet or less. Accordingly the northerly movement of the proposed building would reduce the interference with the existing floodplain and create lesser constriction of flood flows.

On the other hand Starr explained that the reason for leaving the wider area at the north end of the building was to provide as wide an area as possible for snow removal. The northerly movement of the building would reduce this area and would also effect the ascetics of the building by replacing the sodded area at the south with a driveway. In order to create such a driveway the plan that was submitted and that was subsequently approved moved the proposed building ten feet in a northerly direction in order that the driveway and the sodded area might be created along the southerly boundary. In this regard it may be that the appellant would be required, by the building department of the local municipality to provide access along the southerly boundary and there would appear to be some reason to doubt whether the proposal submitted as Exhibit 20 would receive a building permit from the municipality. However such matters are not relevant to the issues in this matter.

It is also apparent from Exhibit 20 and from answers given to the tribunal by Starr that the slope at the southerly boundary would be 10:4.

The submissions on behalf of the respondent were three fold. Firstly it was submitted that the respondent had followed proper principles in rejecting the proposal illustrated by Exhibit 20 and that the proposal contained in Exhibit 21 more effectively provided for the matters over which the respondent has jurisdiction. Secondly it was alleged that the right of appeal of the respondent had merged with his second application thereby extinguishing the right to appeal in respect of the application of September 23, 1977. It was said that the conduct of the appellant fell within the legal adage of "sucking and blowing at the same time" and that the act of appealing after a revised application had been submitted constitutes an abuse of the process of the appellate tribunal. Thirdly it was submitted that the argument based on the permit of November, 1973 is unsound in that the document requires a site plan to be filed in respect of each individual property and that this understanding of the document was established by the evidence in connection with the prior applications made on behalf of the appellant in respect of other lots in addition to the applications that were made in respect of the subject lands. He submitted that even if it were to be treated as a continuing approval it was subject to conditions and the obtaining of approval of a site plan is a condition of the document. It is through such site plan that the respondent is able to control these matters over which it has jurisdiction and in respect of which it has a responsibility of being concerned.

With reference to the November, 1973 document and assuming but not deciding that it is still in effect, I have carefully considered the report of Triton filed as Exhibit 1 and the documents filed as Exhibit 2. The interpretation most favourable to the appellant that I can place on the documents is that they are an acknowledgement that, subject to the matters set out therein, the engineering principle, then known as the "cut and fill principle", would be applied to the lands of the appellant in respect of the matter of storage capacity.

The prohibition of the placing of fill in O. Reg. 211/73 reads:

3. Subject to section 4, no person shall,
...
(b) place or dump fill of any kind or - permit fill to be placed or dumped in the areas described in the schedules, whether such fill is already located in or upon such area or brought to or on such area from some other place or places; or

At the outset it may be noted that clause b of section 3 of O. Reg. 211/73 encompasses the regulation of existing fill on lands. Accordingly any grading or changing of the elevations of the existing fill, as well as the addition of further fill for a development or building project would be governed by the regulation. An exception to the prohibition of the regulation can occur through section 4 which reads:

4. Subject to The Ontario Water Resources Act or to any private interest, the Authority may permit in writing the construction of any building or structure or the placing or dumping of fill or the straightening, changing, diverting or interfering with the existing channel of a river, creek, stream or watercourse to which section 3 applies if, in the opinion of the Authority, the site of the building or structure or the placing or dumping and the method of construction or placing or dumping or the straightening, changing, diverting or interfering with the existing channel will not affect the control of flooding or pollution or the conservation of land.

Under section 4 permission may be granted where "in the opinion of the Authority......" the placing of fill "will not affect the control of flooding or pollution or the conservation of land." In considering applications the respondent should direct its attention to the control of flooding and it is understood by the experts in the field of flood control that there are two prime concerns in regard to fill namely, the loss of storage capacity, which has the result of utilizing the existing floodplain and in the event of a regional storm causing flood waters to rise higher than they otherwise would rise, and the matter of constriction of the flood flows, with its result of holding back the waters creating flooding of areas not otherwise subject to flooding. There are also issues of pollution, which does not appear to be relevant in this case, and of conservation of land. Examples of the latter issue are erosion and weakening of support for buildings and land. The evidence indicates that this issue is relevant in this case. Clause a of section 3 deals with buildings which have issues similar to fill concerns and the additional concern of safety to the property itself and its occupants.

Against this background, a reading of the report of Triton indicates that consideration was given to the matters of the maintenance of existing storage capacity and, to a somewhat lesser extent, erosion or conservation of land. With reference to the latter the report recommends on p.2,

6) Fill slopes should be no greater that 3:1 and sodded.

There is nothing in the report that deals with the matter of constriction of the floodplain or the location of buildings and presumably it was by reason of the absence of the report dealing with these matters that Condition 2, (supra) was inserted in the letter of November 19, 1973. As is apparent from reading the report, flexibility in respect of individual lots was the objective and I cannot conclude that, even in respect of storage capacity, the respondent had bound itself to accept any proposal that might be submitted even in respect of this limited matter.

It is my conclusion that there is nothing in the 1973 documents to prevent the respondent from considering matters of conservation of land or the other important aspect of flood control namely constriction of flood flows. With reference to the first matter it may be noted that the slope at the southerly end of the building shown on Exhibit 20 does not conform with the recommendation of Triton as the slopes at the southerly end of the proposed building exceed the ratio of 3:1 and accordingly it is difficult to understand why Triton would subsequently assert that the plan so conformed. I am satisfied that there were valid grounds for rejecting, in favour of alternative proposals, the proposal illustrated by Exhibit 20. The evidence establishes that there could be less constriction of flood flows and lesser risks of erosion than was provided by Exhibit 20.

Interference with flows is determined by cross-sectional measurement and the illustration of such implications would become apparent only at the time individual site plans are prepared. The placing of buildings on the land and the grading of fill around the buildings create interferences with the cross-section of the floodplain and the reservation of the approval of site plans indicates the ability of a conservation authority to deal with such matters only when a site plan is submitted and the inability to give permission at the stage of the development plan in 1973. Exhibit 20 shows in respect of the remaining cross-section of the floodplain a substantial blocking of the existing flow areas at the south end of the subject lands. The movement in a northerly direction of the proposed building alleviates this blockage. It may have been that the original intent was to place a large building on the subject lands but the creation of six lots in the subdivision also indicates that six individual buildings were contemplated. The result of such a number of smaller buildings would be that through the site plans some provision for the passage of flood flows could have been implemented. In contrast, the erection of a long building at right angles to the tributary and situate in close proximity to the tributary creates a significant "darn" in the floodplain. Hence the retention of as much as possible of the existing cross-section is essential.

Among the submissions on behalf of the appellant it was pointed out the area of the six foot strip that the respondent had suggested be left open was a very small percentage of the total storage area. This submission does not relate to the matter of constriction and is not helpful in considering the implication of constriction. Perhaps the significance of the distinction can be best illustrated by pointing out that the southerly end of the subject land is the only part through which floodwaters could flow and the placing of the building and its supporting fill in this area would increase the holding back of floodwaters creating additional flooding.

I have dealt with the first and third submissions of the respondent by the foregoing remarks. I now turn to the second and more technical argument that the appeal should be dismissed on the technical grounds that the revised application prior to the launching of the appeal vitiated the appeal. While it is not necessary to determine this point for the purpose of disposing of the appeal the point appears to have some relevance in respect of the matter of costs which were requested by counsel for the respondent. This is the first occasion in which counsel for a conservation authority in an appeal of this nature has requested costs and in no previous case of this nature have costs been awarded to a successful conservation authority or against a conservation authority where the appeal has been allowed. This tribunal has mainly followed the approach that an appellant to a Minister who has no statutory jurisdiction to award costs should not be ordered to pay costs by virtue of the assignment, by a statutory device, of the jurisdiction to a tribunal that has such powers. The basis of this approach to costs is more a matter of expectation than a matter of merit of the case.

Commencing with the principle that the power of a statutory tribunal to levy costs is dependent upon statutory authority to that effect, Part VIII of The Mining Act R.S.O. 1970 c.274 sets out, inter alia, the code of procedure to be followed by, the right of appeal from and the power to award costs of the Mining and Lands Commissioner in respect of matters under that Act. Section 157 and 158 provide a wide power and discretion for the awarding of costs. The jurisdiction of the Commissioner in this and similar cases flows from section 5a of The Ministry of Natural Resources Act, 1972, as amended by The Ministry of Natural Resources Amendment Act, 1973. Subsection 6 of the section authorizes the assignment by way of regulation of powers and duties of the Minister of Natural Resources to the Commissioner. Subsection 7 of the section provides,

(7) Part VIII of The Mining Act applies mutatis mutandis to the exercise of authorities, powers and duties assigned to the Commissioner under clause b of subsection 6.

The wording of subsection 7 is broad and is not restricted to matters of procedure. Accordingly, there is a statutory base for the award of costs.

In this case although it does not appear in the evidence or the submissions counsel for the respondent had put the appellant on notice that costs would be requested prior to the hearing and filed a copy of his letter with this tribunal. Accordingly the appellant had an opportunity of considering whether it should withdraw its appeal. For this reason the element of expectation is somewhat removed from the consideration of the request for costs.

The major thrust of the argument for costs was that the right of appeal had disappeared or merged with the revised application for permission in respect of which the respondent had indicated that permission would be granted and to proceed with the appeal constitutes an abuse of process of this tribunal. There is precedent in the courts for an award of costs where improper procedures have been implemented and in making the award, the courts have referred to the doctrine of abuse.

At p. 14 in the text Law of Costs by Mark M. Orkin, Q.C., L.L.M. it is said,

While generally speaking the jurisdiction of the court to award costs must be found in some statute, the court has an inherent jurisdiction to award costs against one who wrongly invokes the aid of its process. Thus, although a court may have no jurisdiction to entertain a particular cause, it may still give costs against the unsuccessful applicant.

An examination of the cases cited in the text indicates that the powers of a court were in issue and accordingly the cases are of little assistance in the present case except that there is some recognition of a principle that the bringing of a proceeding that is not available constitutes an abuse of process. In the case of Re Sturmer and Town of Beaverton (1912) 2 D.L.R. 501 it was held that a court has jurisdiction to award costs against a person who was not a party to the action but caused a man of straw to institute proceedings with the purpose of evading costs if unsuccessful. In the cases of Plaunt v. Gillies Bros. Ltd. (1912) 3 D.L.R. 283 and Re Erb (1908) 16 O.L.R. 594 it was held that a court has power to award costs even though it had no jurisdiction to dispose of the proceedings brought before it. In Re Bombay Civil Fund Act (1888) 40 Ch. D. 288, Cotton L.J. said at p. 289:

It is urged that when we dismiss the statement of claim, on the ground that it does not state any legal ground for applying to the Court, we have no jurisdiction to order the unsuccessful plaintiff to pay costs. I think that we have jurisdiction to order him to pay all the costs incurred by his asking wrongly for the interference of the Court. ........but as the Plaintiff wrongly applied to the Court for its interference, I think we have jurisdiction, independently of any statutory enactment, to make him pay the costs occasioned by that wrongful application.

At p. 289 Bowen L. J. said,

I have always understood it to be a broad principle that a Court which is put in motion wrongly has inherent jurisdiction to compel the person who puts it in motion wrongly, and who brings an innocent party to answer an unfounded claim or an unjustifiable proceeding to pay the costs.

Section 23 (1) of The Statutory Powers Procedure Act, 1971 reads,

23.-(1) A tribunal may make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes.

I can find no judicial interpretation of the subsection in respect of either the definition of abuse of process or the extent of an order that might be made. It may be noted in passing that the language is not in discord with the language of the judges in dealing with the award of costs in matters where they had no jurisdiction. I can think of no more effective a device to prevent the bringing of insignificant or unauthorized applications before any tribunal, whether its function at the time is judicial or administrative. However, in my opinion it is not necessary to find that the conduct of an appellant constitutes an abuse of process in order to award costs against the appellant but it would be most difficult to justify the refusal of an exercise of the existing power to award costs if it could be established that no right of appeal existed and the respondent were put unnecessarily to the defence of a proceeding which the appellant had no right to pursue.

Turning to the question of whether the appellant, by filing a revised application, in respect of which there was a written commitment to grant permission, vitiated the right of appeal, it was submitted that the legal principle is the "suck and blow" principle or, more genteelly, the equitable principle that one cannot approbate and reprobate. These principles are closely related to the doctrine of election. The doctrine of election has several applications, one of which is related to the construction of wills where the testator purported to devise an asset of a beneficiary. However the doctrine has a broader application.

One of the three definitions of election in Wharton's Law Lexicon, Fourteenth Edition is, in part:

(2) The exercise of his choice by a man left to his own free will to take or to do one thing or another. It is the obligation imposed upon a person to choose between two inconsistent or alternative rights or claims. Thus, in Scarf v. Jardine, (1882) 7 App. Cas. 345, the House of Lords held that a customer could not sue a new firm after having elected to sue a retiring partner.

In Black's Law Dictionary, Third Edition, the following statements with authorities are made in respect of practice matters:

The liberty of choosing (or the act of choosing) one out of several means afforded by law for the redress of an injury, or one out of several available forms of action...

An 'election of remedies' arises when one having two coexistent but inconsistent remedies chooses to exercise one, in which event he loses the right to thereafter exercise the other...

An 'election of remedies' is choosing between two or more different and coexisting modes of procedure and relief allowed by law on the same state of facts.

'Election of remedies' is a species of estoppel in pais'.

The application of the doctrine has been recognized in Canada. The Saskatchewan cases of Standard Trust Co. v. Little (No. 2) (1915) 24 D.L.R. 713 and Morgan v. DeGeer (1917) 36 D.L.R. 161 recognize the doctrine and involve a discussion of inconsistency of remedies holding that "inconsistent" means that the end results would negate each other. The doctrine was recognized in Ontario by Orde J. in 1924 in the case of Cooper v. Canadian Northern Ontario Railway Co. 55 O.L.R. 256 at p. 260 where his Lordship said,

Election is 'the exercise of his choice by a man left to his own free will to take or do one thing or another. It is the obligation conferred upon a person to choose between two inconsistent or alternative rights or claims:' Wharton's Law Lexicon, 12th Ed. p.317 'Election' is when a man is left to his own free will take or do one thing or another which he pleaseth:' Termes de la Ley, quoted in Stroud's Judicial Dictionary, p.608.

The leading case in Canada is Findlay v. Findlay [1952] 1 S.C.R. 96. One of the issues was whether the rights under a separation agreement were no longer available to the wife on the grounds that an application had been brought under The Deserted Wives' and Children's Maintenance Act. Kerwin J. said at pp. 103 and 104:

The doctrine of election, or as it is called in the law of Scotland, the doctrine of 'approbation' and 'reprobation', depends upon intention: Spread v. Morgan (1865) 11 H.L. Cas. 588. The doctrine was fully discussed in Lissenden v. C.A.V. Bosch Limited [1940] A.C. 412, and particularly in the judgment of Viscount Maugham. He points out it was confined in England and in Scotland to cases arising under wills and deeds and other instruments inter vivos until the decision of the Court of Appeal in Johnson v. Newton Fire Extinguisher Co. [1914] 2 K.B. III. That decision and others following it were overruled in Lissenden and it was held that the doctrine could not apply to the right of a litigant to appeal either from a judgment or from an award of a County Court judge made under the British Workmen's Compensation Act, 1925, where the litigant had accepted weekly sums payable under an award, and it was decided that he was not precluded from appealing on the ground that the compensation should have been of a larger sum than that awarded. At page 419, after stating as one of the general propositions not in doubt that no person is taken to have made an election until he has had an opportunity of ascertaining his rights and is aware of their nature and extent, Viscount Maugham continues:--'Election in other words, being an equitable doctrine, is a question of intention based on knowledge.' At page 429, Lord Atkin states:--'Where the doctrine does apply, if the person to whom the choice belongs irrevocably and with knowledge adopts the one, he cannot afterwards assert the other.' Lord Russell of Killowen agreed with Viscount Maugham and Lord Atkin. At page 436, Lord Wright states:--'Even if this were (which it is not) a case of election, there is, furthermore, no evidence of the essential elements of election, namely, the presence of knowledge of the position and intention to elect.'

I am unable to perceive upon what grounds it may be said that merely by laying the information the respondent intended to forego any rights she had under the separation agreement. Indeed it is plain that nothing was farther from her mind. The doctrine of election has, therefore, no application.

Rand J. said at pp. 106 and 107,

But it is patent that the right under the agreement and that under the statute are based on different matters and factors: the former could be resisted only by considerations arising out of the agreement: but that under the statute involves desertion and the conditions laid down in s. 1. They are thus separate and distinct in substance, character and remedy. It is not, then, a matter of alternative claims arising out of the same state of facts. The jural conclusion from that situation is this: the rights remain co-existent but, related to a period of time, the performance of only one of them can be exacted; and the operation of one and the suspension of the other will depend on the circumstances. Election could not be taken to be between the statutory right and the agreement as a whole: the latter will in general provide for essential matters which are quite beyond the purview of the statute; and if resort to the statute were to abrogate the provision in the agreement for maintenance, it would effect a basic alteration in the considerations on which the mutual promises were made. It might conceivably lead as well to the defeat of the statutory claim through the removal, by the husband, of the grounds on which it rests. The purpose of the statute is to give to the wife a summary means of compelling the husband to support her: it is not to cut down rights against him which she otherwise possesses. Where such relief is, in the public interest, provided for the protection of the wife, why should it be so interpreted as to create substantial risks in resorting to it? In the presence 'of such disparate and independent claims, each depending on different facts, a rule that the commencement of proceedings on one is an irrevocable election to be bound by its result, putting both on the issue of one, seems to me to lack a sound legal basis.

Election, moreover, implies a plurality of real rights; if an asserted claim is rejected, it cannot be the matter of election. The order of the Family Court did reject the claim under the statute and there was left only the right, if it existed, under the agreement. Furthermore, to bring action on the agreement would not affect the right under the statute; if that were not so, the husband, by deliberate default, could effectually force the wife to the loss of one or other of the remedies; but the statute cannot be taken to intend as a further condition of its availability, that the wife should abandon her remedy under the agreement, an unsatisfied judgment on which would appear clearly to be such a default as s.1 (2) envisages. As election must operate reciprocally, a fortiori the right under the agreement is not lost by a futile resort to the statute.

Kellock J. said at pp. 109 and 110,

"It will be convenient, first, to deal with the defence founded upon election. It is, of course, for the appellant, with respect to this defence as with respect to the others, to make out his case. He contends that the respondent had a choice as between her rights under the agreement and a claim under the statute, and having chosen the latter she has lost the former.

Appellant cites the following from the judgment of Lord Blackburn in Scarf v. Jardine (1882) 7 App. Cas. 345 at 360:-

'The principle, I take it, running through all the cases as to what is an election is this, that where a party in his own mind has thought that he would choose one of two remedies, even though he has written it down on a memorandum or has indicated it in some other way, that alone will not bind him; but so soon as he has not only determined to follow one of his remedies but has communicated it to the other side in such a way as to lead the opposite party to believe that he has made that choice, he has completed his election and can go no further; and whether he intended it or not, if he has done an unequivocal act--I mean an act which would be justifiable if he had elected one way and would not be justifiable if he had elected the other way--the fact of his having done that unequivocal act to the knowledge of the persons concerned is an election.'

In this judgment Lord Blackburn, as pointed out by Lord Atkin in United Australia v. Barclays Bank [1841] A.C. 1 at 30, is dealing not with alternative remedies but with the case of a person who is presented with two inconsistent rights, and the important thing to observe for present purposes is that in order that a plaintiff becomes disentitled to a right by electing to enforce another, he must, to begin with, have actually had a choice of two rights. This underlies the judgments of all of their Lordships.

In the course of his judgment in the United Australia case (supra), Lord Atkin said at p.30:--

'On the other hand, if a man is entitled to one of two inconsistent rights, it is fitting that when with full knowledge he has done an unequivocal act showing that he has chosen the one, he cannot afterwards pursue the other, which after the first choice is, ~ reason of the inconsistency, no longer his to choose.'

In my opinion the respondent, on the facts in the case at bar, did not have any cause of action under the Deserted Wives' and Children's Maintenance Act, and therefore was not, in fact, faced with an election at all."

The House of Lords decision of Lissenden v. C.A.V. Bosch, Limited [1940] A.C. 412 is similar to the present case. The issue was whether a workman, on the doctrine of election, had lost his right of appeal under the Workmen's Compensation Act by accepting payment of an award of the County Court Judge under the Act. It was a case where the rights of the parties were significantly changed by the legislation and an alternative procedure was established by the Act. It was held that the accepting of the decision of one of the lower levels in the procedure did not prevent the workman from proceeding with the appeal to the Court of Appeal provided in the Act. At p.429 Lord Atkin said:

But I also share the difficulty which I think all your Lordships feel as to the application of what has been called the doctrine of 'approbation and reprobation.' The noble Lord on the Woolsack has to my mind clearly shown the limitations of that doctrine as defined in the law of Scotland from which it comes. In this country I do not think it expresses any formal legal concept: I regard it as a descriptive phrase equivalent to 'blowing hot and cold.' I find great difficulty in placing such phrases in any legal category: though they may be applied correctly in defining what is meant by election whether at, common law or in equity. In cases where the doctrine does apply the person concerned has the choice of two rights, either of which he is at liberty to adopt, but not both. Where the doctrine does apply, if the person to whom the choice belongs irrevocably and with knowledge adopts the one he cannot afterwards assert the other. Election between the liability of principal and agent is perhaps the most usual instance in common law.

The doctrine of election could have no place in the present case. The applicant is not faced with alternative rights: It is the same right that he claims but in larger degree. In Wills v. Duckworth [1938] 1 All. B.R. 318, 321, a plaintiff who had been awarded damages for negligence had taken the judgment sum out of a larger sum paid into Court and then had appealed against the quantum of damages and was met by a similar objection to the appeal. Lord Fairfield in overruling the objection pointedly said:

"The plaintiff said 'I am not going to blow hot and cold. I am going to blow hotter'." Here the applicant is not faced with a choice between alternative rights: he has exercised an undisputed right to compensation: and claims to have a right to more. You have not lost your right to a second helping because you have taken the first."

From the foregoing authorities it is apparent that, firstly, the principle referred to by counsel for the respondent, subject to the deference to the principle expounded by Lord Atkin is nothing other than the doctrine of election. The position of the appellant in this case is no different than the position of the appellant in the Lissenden case who took the award offered by the original tribunal and subsequently was permitted to exercise the right of appeal in the statute.

Accordingly I cannot conclude that the filing of the revised application prevented the appellant from pursuing an appeal and for this reason the motion for nonsuit should be denied and the exercise of discretion in respect of costs should not be based on such a technical argument.

The only issue remaining in respect of costs is whether, on the merits of the case, the usual rule of costs following the event should be applied. As indicated above the element of lack of expectation was removed in this case. The appellant had received professional advice from engineers who were not called as witnesses and it appears that their advice in connection with the site plan in issue was inconsistent with their recommendations of 1973. I see no reason to require the respondent to bear its costs of defending against a proposal containing such an inconsistency and which did not provide any significant method for the passage of flood flows and where the respondent had indicated a willingness to grant permission that did make some recognition of the responsibilities of the respondent without reducing the size of the building contemplated by the appellant.

It is ordered that the appeal in this matter be and is hereby dismissed.

It is further ordered that the appellant pay to the respondent its costs of this appeal on a supreme court scale forthwith after taxation thereof.

Dated at Toronto this 19th day of December, 1978.

Original signed by G.H. Ferguson
Mining and Lands Commissioner.