Attorney-General of Canada v. Higbie

Attorney-General of Canada v. Higbie

The Supreme Court restored the trial judgment: the disputed foreshore (Coal Harbour) belonged to the Dominion — either because it formed part of a public harbour at Confederation or by the 1924 orders in council which validly recognized/transferred Dominion administrative control; the 1867 Crown grant "with appurtenances" did not convey the foreshore; prescription under Nullum Tempus was not established; the respondents’ works exceeded riparian rights and they are liable to pay mesne profits, subject to a reference to quantify rents taking into account any legitimate riparian use.

Citation
[1945] SCR 385
Parties
Appellant/plaintiff: Attorney-General of Canada; Respondent/defendant: Western Higbie; Respondent/defendant: Albion Investments Ltd.; Intervener: The Attorney General for British Columbia
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
23 March 1945
Procedural Posture
Constitutional Law / Property (foreshore) / On Appeal — Supreme Court of Canada Final Judgment (appeal From Court of Appeal for British Columbia)
Outcome
Appeal allowed; trial judgment restored in favour of Attorney-General of Canada
Legal Topics
Foreshore Ownership, Public Harbour, Crown Prerogative, Order in Council, Prescription (nullum Tempus), Riparian Rights, Mesne Profits
Source Language
English
Constitutional Law Property Law Administrative Law Maritime Law Foreshore Ownership Public Harbour Crown Prerogative Order in Council +3 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Legal principles 6 Authorities cited 15 Party arguments 2 Amounts and remedies 2
Sign in to unlock

Parties

Attorney-General of Canada

Appellant/plaintiff

Western Higbie

Respondent/defendant

Albion Investments Ltd.

Respondent/defendant

The Attorney General for British Columbia

Intervener

Procedural Posture

Constitutional Law / Property (foreshore) / On Appeal — Supreme Court of Canada Final Judgment (appeal From Court of Appeal for British Columbia)

Legal Issues

  1. 1 Whether the Dominion of Canada held title/possession of the disputed foreshore (Coal Harbour)
  2. 2 Whether Coal Harbour formed part of a public harbour at Confederation (1871) for purposes of s.108 BNA Act
  3. 3 Validity and effect of the 1924 provincial and Dominion orders in council and whether executive action could transfer/recognize ownership absent legislation

Ratio Decidendi

The Supreme Court restored the trial judgment: the disputed foreshore (Coal Harbour) belonged to the Dominion — either because it formed part of a public harbour at Confederation or by the 1924 orders in council which validly recognized/transferred Dominion administrative control; the 1867 Crown grant "with appurtenances" did not convey the foreshore; prescription under Nullum Tempus was not established; the respondents’ works exceeded riparian rights and they are liable to pay mesne profits, subject to a reference to quantify rents taking into account any legitimate riparian use.

Court Disposition

Appeal allowed; trial judgment restored in favour of Attorney-General of Canada

Orders

  • Judgment restored declaring Dominion (Attorney-General of Canada) legal and beneficial owner and entitled to possession of disputed foreshore
  • Respondents held liable for mesne profits to the Crown