Alberta (Minister of Infrastructure) v. Nilsson,

• Judge: Russell,Watson,Wittmann
• Neutral Citation: 2002 ABCA 283
• Court: Court of Appeal (Alberta)
• Date: 29 November 2002

Alta. v. Nilsson (2002), 320 A.R. 88 (CA);

    288 W.A.C. 88

MLB headnote and full text

Temp. Cite: [2002] A.R. TBEd. DE.025

Her Majesty The Queen in Right of The Province of Alberta As Represented by The Minister of Infrastructure (formerly The Minister of Public Works, Supply and Services) (appellant) v. Thor William Nilsson (respondent)

Thor William Nilsson (appellant) v. Her Majesty The Queen in Right of The Province of Alberta As Represented by The Minister of Public Works, Supply and Services (respondent)

(9903-0357-AC; 9903 0356-AC; 2002 ABCA 283)

Indexed As: Alberta v. Nilsson

Alberta Court of Appeal

Russell and Wittmann, JJ.A., and Watson, J.(ad hoc)

November 29, 2002.

Summary:

The province planned to acquire land for building ring roads. Nilsson's land was included in one targeted area. In 1974 the Crown, which initially had no immediate plans to purchase the reserved lands save in exceptional circumstances, created Restricted Development Areas (RDAs) under the Department of the Environment Act, to preserve them for their intended future use. This use of the Act was successfully challenged in 1977 and the province subsequently amended the legislation to permit the use. In 1976 Nilsson's application to develop a mobile home park on his property was refused. Negotiations to purchase Nilsson's land broke off twice, in 1976 and 1978. The Crown actively sought to purchase some lands from 1979 to 1981 but Nilsson was left out of the purchase rush. In 1982 Nilsson again initiated contact with the Crown and negotiations began but were not concluded until 1987 when an agreement to purchase under s. 30 of the Expropriation Act was reached. The agreement contemplated that the compensation quantum issue would be decided by the Land Compensation Board. However, before the Board hearing was held Nilsson sued the Crown claiming de facto expropriation of his land, and the tort of abuse of public office. In 1993 the parties agreed to submit the contentious issues and the compensation issue (i.e., the value of the land in 1987) to arbitration. The arbitrator found that the de facto expropriation action was barred by the Limitation of Actions Act but that the tort of abuse of public office had occurred around 1976. The arbitrator fixed damages flowing from that tort (valuing the land as of May 1, 1977) and fixed compensation for the land in 1987. The arbitrator refused damages for loss of interest in an auction market as the damages were too remote to meet the foreseeability test. The arbitrator rejected Nilsson's claim for damages at large and exemplary damages. The Crown appealed and Nilsson cross-appealed. At issue was: whether there was a de facto expropriation of Nilsson's land by the Crown and if so, when; whether the Crown committed the tort of abuse of public office, and if so, when; and whether the arbitrator erred in assessing market value and in ordering the Crown to pay interest to Nilsson.

The Alberta Court of Queen's Bench, in a decision reported at 246 A.R. 201, dismissed the appeal and cross-appeal. No claim for disturbance damages would be allowed where the arbitration agreement did not allow for such. There was no de facto expropriation where the freeze was not a total "taking" of Nilsson's land. The arbitrator applied the wrong test for abuse of public office, but had he applied the correct test he should have found that abuse of public office occurred in 1976 in any event. The tort was knowingly, illegally freezing the land through establishment of the RDA, but damage did not occur until 1976 when negotiations subsequent to development refusal ensued. The court affirmed the award of damages and interest. The Crown and Nilsson appealed.

The Alberta Court of Appeal dismissed the appeal and cross-appeal.

Arbitration - Topic 5702

The award - Interest - Jurisdiction - The province planned to acquire land, including Nilsson's land, for road building - The province initially had no immediate plans to purchase the reserved lands, save in exceptional circumstances, and restricted their development to preserve them for their intended future use by creating a Restricted Development Area (RDA) under the Department of the Environment Act - A consensual arbitrator held that the Crown had committed an abuse of public office and that the remedy was expropriation - The arbitrator fixed damages and awarded interest based on the interest that was charged on Nilsson's corporate loans -A Queen's Bench appeal judge held that the arbitrator acted within his discretion - The Alberta Court of Appeal also refused to interfere with the interest rate assigned by the arbitrator - See paragraph 222.

Arbitration - Topic 5702

The award - Interest - Jurisdiction - In 1974 the province froze Nilsson's land for later highway development - In 1976 Nilsson's application to develop a mobile home park on his property was refused - Negotiations to purchase Nilsson's land broke off twice, in 1976 and 1978 - In 1982 negotiations began again, but were not concluded until 1987 when an agreement to purchase under s. 30 of the Expropriation Act was reached - The agreement contemplated that the amount of compensation would be decided by the Land Compensation Board - However, prior to the Board hearing, Nilsson sued the Crown for, inter alia, abuse of public office - In 1993 the parties agreed to submit the contentious issues and the compensation question (i.e., the value of the land in 1987) to arbitration - The arbitrator found an abuse of public office for which expropriation was the appropriate remedy - On appeal, the Crown argued, inter alia, that: the arbitrator lacked jurisdiction to award pre-1984 interest (in that such interest could be justified neither under s. 15 of the Judicature Act, nor as damages); the arbitrator lacked jurisdiction to award post-1984 compound interest; and the post-1984 rate was not justifiable on the facts - A Queen's Bench appeal judge affirmed the interest award - The Crown appealed - The Alberta Court of Appeal dismissed the appeal - See paragraphs 176 to 222.

Expropriation - Topic 3

Right to compensation - General principles - Expropriation defined - In 1974 the province froze lands, including Nilsson's land, for highway purposes - The province initially had no immediate plans to purchase the reserved lands, save in exceptional circumstances - In 1976 Nilsson's application to develop his property was refused - In 1978, Nilsson received a bona fide offer to purchase his land, subject to removal of the development freeze - Negotiations with the Crown to purchase his land broke off in 1976 and 1978 - The Crown actively sought to purchase some lands from 1979 to 1981, but not Nilsson's land - Further negotiations from 1982 to 1987 did not yield an agreement on price -The Alberta Court of Appeal held that neither the development freeze nor the denial of a development permit amounted to a de facto expropriation - See paragraphs 44 to 62.

Expropriation - Topic 3

Right to compensation - General principles - Expropriation defined - Nilsson argued that the Crown's failure to notify him of its intent to expropriate his land in accordance with s. 28 of the Public Works Act constituted a de facto expropriation - The Alberta Court of Appeal disagreed - The court stated that "There cannot be compensation for expropriation when no taking has occurred. If the state has acted wrongfully and a property owner has suffered damages as a result, he or she may seek to recover through a claim in tort. However, absent a taking, a wrongful act alone does not, merely because of its wrongful nature, amount to expropriation." - See paragraph 64.

Expropriation - Topic 1090

Measure of compensation - Time for valuation - General - In 1974 the province froze Nilsson's land for later highway development - In 1976 Nilsson's application to develop a mobile home park on his property was refused - Negotiations to purchase Nilsson's land broke off twice, in 1976 and 1978 - In 1982 negotiations began again, but were not concluded until 1987 when an agreement to purchase under s. 30 of the Expropriation Act was reached - The agreement contemplated that the amount of compensation would be decided by the Land Compensation Board - However, prior to the Board hearing, Nilsson sued the Crown for, inter alia, abuse of public office - In 1993 the parties agreed to submit the contentious issues and the compensation question (i.e., the value of the land in 1987) to arbitration - The arbitrator found an abuse of public office for which expropriation was the appropriate remedy - The Queen's Bench appeal judge affirmed the arbitrator's conclusion that for the purpose of damages the land should be valued with reference to a reasonable time to conclude the purchase or expropriation process after the negotiations following the development refusal were at an end (November 1976) - The provision for time was largely discretionary and the court adopted May 1, 1977, the date determined by the arbitrator, as the valuation date - The Alberta Court of Appeal affirmed this conclusion - See paragraph 163.

Expropriation - Topic 1322

Measure of compensation - Elements of compensation - Interest - [See both Arbitration - Topic 5702 ].

Expropriation - Topic 1653

Measure of compensation - Interest - Commencement of - [See second Arbitration -Topic 5702 ].

Interest - Topic 801

Equity - General - The Alberta Court of Appeal stated that "A court can award interest on the following grounds: (a) as provided by statute; (b) in law for a 'debt or sum certain', under s. 15 of the Judicature Act; (c) in equity; and (d) as a common law right independent of statute, including as damages." - See paragraph 179.

Interest - Topic 811

Equity - General - Calculation of interest - Simple or compound - An appellant argued that s. 8(2) of the Judgment Interest Act did not allow prejudgment interest prior to the date of its enactment and that s. 2(2)(b) of the Act did not allow interest to be compounded - The Alberta Court of Appeal disagreed, holding that the Act should not be read restrictively - The court reviewed case law and texts respecting the awarding of compound interest in equity and at common law - The court stated that there was growing authority for a broad discretion to award interest as damages - See paragraphs 176 to 219.

Interest - Topic 3501

Statutory interest - On judgments - General - [See Interest - Topic 801 ].

Interest - Topic 5002

Interest as damages (prejudgment interest) - General principles - Jurisdiction - [See Interest - Topic 801 ].

Interest - Topic 5010

Interest as damages (prejudgment interest) - General principles - Calculation of interest - Simple or compound - [See second Arbitration - Topic 5702 and Interest - Topic 811 ].

Interest - Topic 5045

Interest as damages (prejudgment interest) - Statutes - Application of - [See Interest -Topic 811 ].

Practice - Topic 9012

Appeals - Restrictions on argument on appeal - Issues or points not previously raised - An arbitrator made an award of interest against the Crown - The Crown appealed - A Queen's Bench appeal judge held, inter alia, that as the Crown had not objected to the arbitrator's jurisdiction to award interest, the award of pre-1984 interest, or compound interest, it could not raise the issue before him - The Crown appealed - The Alberta Court of Appeal held that as the jurisdiction of the arbitrator to award prejudgment interest was a pure question of law, to which further evidence would not be relevant, the Crown was not barred from raising this new ground on appeal - See paragraphs 164 and 169 to 175.

Statutes - Topic 6703

Operation and effect - Commencement, duration and repeal - Retrospective and retroactive enactments - What constitutes retrospective or retroactive operation - The province planned to acquire land, including Nilsson's land, for road building - The province initially had no immediate plans to purchase the reserved lands, save in exceptional circumstances, and restricted their development under the Department of the Environment Act to preserve them for their intended future use - This use of the Act was successfully challenged and the province subsequently amended the legislation to permit the use - The Queen's Bench appeal judge held that the amending Act had retrospective, but not retroactive effect - The Alberta Court of Appeal affirmed this conclusion - See paragraphs 66 to 76.

Torts - Topic 9162

Duty of care - Particular relationships - Claims against public officials, authorities or boards - Misfeasance in or abuse of public office - A Queen's Bench appeal judge stated that "... the appropriate test for abuse of public office in Canada can be stated as follows: Has there been deliberate misconduct on the part of a public official? Deliberate misconduct is established by proving: 1. an intentional illegal act, which is either: (i) an intentional use of statutory authority for an improper purpose; or (ii) actual knowledge that the act (or omission) is beyond statutory authority; or (iii) reckless indifference, or willful blindness to the lack of statutory authority for the act; 2. intent to harm an individual or a class of individuals, which is satisfied by either: (i) an actual intention to harm; or (ii) actual knowledge that harm will result; or (iii) reckless indifference or willful blindness to the harm that can be foreseen to result." - The Alberta Court of Appeal affirmed this test - Subjective knowledge was not required - See paragraph 101.

Torts - Topic 9162

Duty of care - Particular relationships - Claims against public officials, authorities or boards - Misfeasance in or abuse of public office - The Alberta Court of Appeal held that it was an error to make legal distinctions based on the particular office held by a government agent for the purposes of determining liability for the tort of abuse of public office - The court stated that "The nature of the office held by the state agent may be significant, in a factual and contextual sense. It may affect the nature of the agent's duties. It may inform an inference as to knowledge possessed. And it may be relevant in determining the breach of such duties. But the nature of the office held does not alter the legal standard for this particular tort, inasmuch as all government agents should act lawfully." - See paragraph 90.

Cases Noticed:

Heppner v. Alberta (1977), 6 A.R. 154 (C.A.), refd to. [para. 5].

Hickman Motors Ltd. v. Minister of National Revenue, [1997] 2 S.C.R. 336; 213 N.R. 81, refd to. [para. 37].

R. v. Skalbania (N.M.), [1997] 3 S.C.R. 995; 220 N.R. 349; 99 B.C.A.C. 81; 162 W.A.C. 81, refd to. [para. 37].

Alberta v. Alberta Union of Provincial Employees (1998), 223 A.R. 169; 183 W.A.C. 169 (C.A.), refd to. [para. 38].

Motor Truck Express Ltd. v. General Teamsters, Local Union No. 362 et al. (1994), 162 A.R. 193; 83 W.A.C. 193 (C.A.), refd to. [para. 38].

Hollis v. Dow Corning Corp. et al., [1995] 4 S.C.R. 634; 190 N.R. 241; 67 B.C.A.C. 1; 111 W.A.C. 1, refd to. [para. 38].

Minister of National Revenue v. Schwartz, [1996] 1 S.C.R. 254; 193 N.R. 241; 16 C.C.E.L.(2d) 141; 96 D.T.C. 6103; 10 C.C.P.B. 213; 133 D.L.R.(4th) 289; [1996] 1 C.T.C. 303, refd to. [para. 38].

Rockingham Sisters of Charity v. R., [1922] 2 A.C. 315 (P.C.), refd to. [para. 45].

Attorney General v. DeKeyser's Royal Hotel Ltd., [1920] A.C. 508 (H.L.), refd to. [para. 46].

France Fenwick & Co. v. R., [1927] 1 K.B. 458 (H.L.), refd to. [para. 47].

Manitoba Fisheries Ltd. v. Canada, [1979] 1 S.C.R. 101; 23 N.R. 159, refd to. [para. 48].

Tener and Tener v. British Columbia, [1985] 1 S.C.R. 533; 59 N.R. 82, refd to. [para. 48].

Casamiro Resource Corp. v. British Columbia (Attorney General) (1991), 80 D.L.R.(4th) 1; 55 B.C.L.R.(2d) 346 (C.A.), refd to. [para. 48].

Belfast Corp. v. O.D. Cars Ltd., [1960] A.C. 490 (H.L.), refd to. [para. 51].

Steer Holdings Ltd. v. Manitoba et al. (1992), 83 Man.R.(2d) 171; 36 W.A.C. 171; 99 D.L.R.(4th) 61 (C.A.), refd to. [para. 56].

Mariner Real Estate Ltd. v. Nova Scotia (1999), 178 N.S.R.(2d) 294; 549 A.P.R. 294; 177 D.L.R.(4th) 696 (C.A.), refd to. [para. 57].

Trelenberg v. Alberta (Minister of the Environment) (1980), 31 Alta. L.R.(3d) 353 (Q.B.), refd to. [para. 60].

Toronto Area Transit Operating Authority v. Dell Holdings Ltd., [1997] 1 S.C.R. 32; 206 N.R. 321; 97 O.A.C. 81, refd to. [para. 63].

Bell Express Vu Limited Partnership v. Rex et al. (2002), 287 N.R. 248; 166 B.C.A.C. 1; 271 W.A.C. 1 (S.C.C.), refd to. [para. 70].

Three Rivers District Council et al. v. Bank of England (No. 3), [2000] 2 W.L.R. 1120; [2000] 3 All E.R. 1; 257 N.R. 1 (H.L.), refd to. [para. 85].

Powder Mountain Resorts Ltd. et al. v. British Columbia et al., [2001] 11 W.W.R. 488; 159 B.C.A.C. 14; 259 W.A.C. 14 (C.A.), refd to. [para. 87].

Rice (P.C.J.) v. New Brunswick (2002), 282 N.R. 201; 245 N.B.R.(2d) 299; 636 A.P.R. 299; 209 D.L.R.(4th) 564 (S.C.C.), refd to. [para. 88].

Nelles v. Ontario et al., [1989] 2 S.C.R. 170; 98 N.R. 321; 35 O.A.C. 161; 60 D.L.R.(4th) 609; 49 C.C.L.T. 217, refd to. [para. 91].

Proulx v. Quebec (Procureur général), [2001] 3 S.C.R. 9; 276 N.R. 201, refd to. [para. 91].

Roncarelli v. Duplessis, [1959] S.C.R. 121, refd to. [para. 92].

Odhavji Estate et al. v. Woodhouse et al. (2000), 142 O.A.C. 149; 194 D.L.R.(4th) 577 (C.A.), leave to appeal granted (2001), 276 N.R. 199; 154 O.A.C. 199 (S.C.C.), refd to. [para. 93].

Black v. Chrétien et al. (2001), 147 O.A.C. 141 (C.A.), refd to. [para. 93].

First National Properties Ltd. v. Highlands (District) et al. (2001), 152 B.C.A.C. 83; 250 W.A.C. 83; 178 D.L.R.(4th) 505 (C.A.), refd to. [para. 93].

Garrett v. Attorney General, [1997] 2 N.Z.L.R. 332 (C.A.), refd to. [para. 94].

Northern Territory of Australia v. Mengel (1995), 69 A.L.J.R. 527; 129 A.L.R. 1 (Aust. H.C.), refd to. [para. 94].

R. v. Sansregret, [1985] 1 S.C.R. 570; 58 N.R. 123; 35 Man.R.(2d) 1; 18 C.C.C.(3d) 223, refd to. [para. 98].

Watkins v. Olafson et al., [1989] 2 S.C.R. 750; 100 N.R. 161; 61 Man.R.(2d) 81; 61 D.L.R.(4th) 577; [1989] 6 W.W.R. 481; 39 B.C.L.R.(2d) 294; 50 C.C.L.T. 101, refd to. [para. 102].

General Motors Acceptance Corp. of Canada Ltd. v. Mahfouz and Canadian Imperial Bank of Commerce et al. (1984), 67 A.R. 145; 14 D.L.R.(4th) 437 (C.A.), refd to. [para. 102].

Ichi Canada Ltd. et al. v. Palmquist et al., [1997] B.C.T.C. Uned. 258 (S.C.), refd to. [para. 103].

Starline Entertainment Centre Inc. et al. v. Ciccarelli et al. (1995), 25 O.R.(3d) 765; 41 C.P.C.(3d) 99 (Gen. Div.), refd to. [para. 103].

Stenner v. British Columbia Securities Commission et al. (1996), 82 B.C.A.C. 124; 133 W.A.C. 124 (C.A.), refd to. [para. 103].

Nand v. Board of Education of Edmonton Public School District No. 7 (1994), 157 A.R. 123; 77 W.A.C. 123 (C.A.), refd to. [para. 104].

Bater v. Bater, [1950] 2 All E.R. 458 (C.A.), refd to. [para. 104].

Hanes v. Wawanesa Mutual Insurance Co., [1963] S.C.R. 154, refd to. [para. 104].

Continental Insurance Co. v. Dalton Cartage Co. et al., [1982] 1 S.C.R. 164; 40 N.R. 135, refd to. [para. 104].

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335; 26 D.L.R.(4th) 200; 50 C.R.(3d) 1; 24 C.C.C.(3d) 321; 19 C.R.R. 308, refd to. [para. 104].

Remmers et al. v. Lipinski et al. (2001), 293 A.R. 156; 257 W.A.C. 156 (C.A.), refd to. [para. 107].

R. v. Cooper, [1978] 1 S.C.R. 860; 14 N.R. 181; 34 C.C.C.(2d) 18, refd to. [para. 109].

Three Rivers District Council et al. v. Bank of England (2001), 267 N.R. 236 (H.L.), refd to. [para. 109].

Manifest Shipping Co. v. Uni-Polaris Shipping Co. et al., [2001] 2 W.L.R. 170; 226 N.R. 50 (H.L.), refd to. [para. 117].

Wentworth v. Lloyd (1864), 11 E.R. 1154 (H.L.), refd to. [para. 123].

R. v. Zylstra (D.) (1995), 82 O.A.C. 394; 41 C.R.(4th) 130 (C.A.), refd to. [para. 123].

McKee v. Alberta (1967), 16 L.C.R. 35 (Alta. T.D.), refd to. [para. 147].

Kramer et al. v. Wascana Centre Authority et al., [1967] S.C.R. 237, refd to. [para. 147].

Canadian Pacific Railway Co. v. Kerr et al. (1913), 49 S.C.R. 33, refd to. [para. 170].

Athey v. Leonati et al., [1996] 3 S.C.R. 458; 203 N.R. 36; 81 B.C.A.C. 243; 132 W.A.C. 243, refd to. [para. 171].

Lamb v. Kincaid (1907), 38 S.C.R. 516, refd to. [para. 172].

K.M. v. H.M., [1992] 3 S.C.R. 3; 142 N.R. 321; 57 O.A.C. 321; 96 D.L.R.(4th) 289, refd to. [para. 172].

R. v. Brown (A.R.R.), [1993] 2 S.C.R. 918; 155 N.R. 225; 141 A.R. 163; 46 W.A.C. 163, refd to. [para. 172].

Block Brothers Realty Ltd. v. Boese and Gonzo (1988), 24 B.C.L.R.(2d) 178 (C.A.), refd to. [para. 172].

Ship Tordenskjold v. Ship Euphemia (1908), 41 S.C.R. 154, refd to. [para. 173].

Slesar v. Shaver Hospital (1979), 106 D.L.R.(3d) 377; 27 O.R.(2d) 383 (C.A.), leave to appeal refused, [1981] 1 S.C.R. xiii; 38 N.R. 353, refd to. [para. 173].

Shaver Hospital for Chest Diseases v. Slesar et al. - see Slesar v. Shaver Hospital.

National Trust Co. v. Bouckhuyt (1987), 23 O.A.C. 40; 46 D.L.R.(4th) 543; 61 O.R.(2d) 640 (C.A.), refd to. [para. 173].

Bank of America Canada v. Mutual Trust Co. et al. (2002), 287 N.R. 171; 159 O.A.C. 1 (S.C.C.), refd to. [para. 180].

Costello and Dickhoff v. Calgary (City) (1997), 209 A.R. 1; 160 W.A.C. 1; 152 D.L.R.(4th) 453 (C.A.), refd to. [para. 181].

Riches v. Westminster Bank Ltd., [1947] A.C. 390 (H.L.), refd to. [para. 187].

Pickett v. British Rail Engineering Ltd., [1979] 1 All E.R. 774 (H.L.), refd to. [para. 188].

Henderson v. Hatton (1981), 126 D.L.R.(3d) 50; [1981] 5 W.W.R. 624 (B.C.C.A.), refd to. [para. 188].

Weiss Air Sales Ltd. v. Bank of Montreal (1982), 134 D.L.R.(3d) 706 (Ont. H.C.), affd. (1982), 140 D.L.R.(3d) 576 (Ont. C.A.), refd to. [para. 194].

Public Trustee (Ont.) v. Mortimer (1985), 16 D.L.R.(4th) 404 (Ont. H.C.), refd to. [para. 194].

Roman Catholic Diocese of Calgary Association for Senior Citizens and Shamrock Taxi Ltd. v. Century Insurance Co. of Canada et al. (1984), 52 A.R. 295; 31 Alta. L.R.(2d) 245 (C.A.), refd to. [para. 194].

Brock v. Cole (1983), 142 D.L.R.(3d) 461; 40 O.R.(2d) 97 (C.A.), refd to. [para. 194].

Wotherspoon v. Canadian Pacific Ltd. - see Eaton Retirement Annuity Plan v. Canadian Pacific Ltd. et al.

Eaton Retirement Annuity Plan v. Canadian Pacific Ltd. et al. (1982), 129 D.L.R.(3d) 1; 35 O.R.(2d) 449 (C.A.), revd. [1987] 1 S.C.R. 952; 76 N.R. 241; 21 O.A.C. 79, refd to. [para. 195].

Claiborne Industries Ltd. et al. v. National Bank of Canada et al. (1989), 34 O.A.C. 241; 59 D.L.R.(4th) 533; 69 O.R.(2d) 65 (C.A.), refd to. [para. 195].

Chatham Motors v. Fidelity & Casualty Insurance Co. of New York (1988), 63 O.R.(2d) 205 (C.A.), refd to. [para. 195].

Wallersteiner v. Moir (No. 2), [1975] 1 All E.R. 849 (C.A.), refd to. [para. 197].

British Pacific Properties Ltd. v. British Columbia, [1978] 5 W.W.R. 536 (B.C.S.C.), varied, [1980] 2 W.W.R. 525 (B.C.C.A.), revd. [1980] 2 S.C.R. 283; 33 N.R. 98, refd to. [para. 197].

Inglewood Pulp & Paper Co. v. New Brunswick Electric Power Commission, [1928] A.C. 492 (P.C.), refd to. [para. 197].

British Columbia (Minister of Highways) v. Richland Estates Ltd. (1973), 4 L.C.R. 85 (B.C.C.A.), refd to. [para. 198].

Harrison v. Mathieson (1916), 30 D.L.R. 150 (Ont. C.A.), refd to. [para. 199].

Calmont Leasing Ltd. v. Kredl et al. (1995), 165 A.R. 343; 89 W.A.C. 343; 30 Alta. L.R.(3d) 16 (C.A.), refd to. [para. 199].

Keech v. Sandford (1726), 22 E.R. 629 (Ch.), refd to. [para. 203].

Cook v. Deeks, [1916] 1 A.C. 554 (P.C.), refd to. [para. 203].

Pavlakis v. 359068 Ontario Ltd., [1985] O.J. No. 289 (H.C.), refd to. [para. 205].

Park Projects Ltd. v. Halifax (City) (1982), 54 N.S.R.(2d) 116; 112 A.P.R. 116 (C.A.), refd to. [para. 205].

Kemp v. Lee (1984), 58 B.C.L.R. 219 (C.A.), refd to. [para. 205].

Heeney v. Best (1979), 108 D.L.R.(3d) 366; 28 O.R.(2d) 71 (C.A.), refd to. [para. 205].

Borland v. Muttersbach (1984), 15 D.L.R.(4th) 486; 49 O.R.(2d) 165 (H.C.), revd. (1985), 23 D.L.R.(4th) 664; 53 O.R.(2d) 129 (C.A.), refd to. [para. 205].

Niagara Air Bus Inc. v. Camerman (1991), 49 O.A.C. 7; 80 D.L.R.(4th) 611; 3 O.R.(3d) 108 (C.A.), leave to appeal refused [1992] 1 S.C.R. x; 138 N.R. 413; 56 O.A.C. 79, refd to. [para. 208].

Confederation Life Insurance Co. v. Shepherd (1992), 29 R.P.R.(2d) 271 (Ont. Gen. Div.), revd. (1996), 88 O.A.C. 398 (C.A.), refd to. [para. 209].

Mannix v. Alberta (1984), 56 A.R. 221; 35 Alta. L.R.(2d) 289 (C.A.), refd to. [para. 210].

Cummings v. Halliburton Services Ltd. and Bushnaq (1980), 27 A.R. 181 (Q.B.), refd to. [para. 212].

Granpac Ltd. v. American Home Assurance Co. (1981), 33 A.R. 212; 129 D.L.R.(3d) 704 (C.A.), refd to. [para. 212].

Fort McMurray Roman Catholic School District No. 32 v. Fort McMurray School District No. 2833, [1987] A.J. No. 33 (C.A.), refd to. [para. 212].

Mueller (Karl) (District) Construction Ltd. v. Northwest Territories (Commissioner), [1991] N.W.T.R. 1; 73 D.L.R.(4th) 234 (C.A.), refd to. [para. 212].

Atlantic Salvage & Dredging Ltd. v. Halifax (City) (1978), 30 N.S.R.(2d) 512; 49 A.P.R. 512; 94 D.L.R.(3d) 513 (C.A.), refd to. [para. 212].

Prime Potash Corp. of Canada Ltd. v. Bison Petroleum & Minerals Ltd. (1968), 1 D.L.R.(3d) 362 (Sask. Q.B.), refd to. [para. 213].

Lewis v. Todd et al., [1980] 2 S.C.R. 694; 34 N.R. 1; 115 D.L.R.(3d) 257; 14 C.C.L.T. 294, refd to. [para. 213].

Fenn v. Peterborough (City) (1979), 104 D.L.R.(3d) 174; 25 O.R.(2d) 399 (C.A.), affd. [1981] 2 S.C.R. 613; 40 N.R. 425, refd to. [para. 213].

Algonquin Mercantile Corp. v. Dart Industries Canada Ltd., [1988] 2 F.C. 305; 79 N.R. 305 (F.C.A.), refd to. [para. 213].

Apotex Inc. and Novopharm Ltd. v. Wellcome Foundation Ltd. (2000), 262 N.R. 137 (F.C.A.), refd to. [para. 213].

Hungerfords v. Walker (1989), 171 C.L.R. 125; 63 A.L.J.R. 201 (Aust. H.C.), refd to. [para. 213].

Trans Trust S.P.R.L. v. Danubian Trading Co., [1952] 1 All E.R. 970 (C.A.), refd to. [para. 217].

Compania Financiera Soleada S.A. et al. v. Hamoor Tanker Corp. Inc.; Ship Borag, [1981] 1 All E.R. 856 (C.A.), refd to. [para. 217].

Bank of America Canada v. Mutual Trust Co. et al. (1998), 59 O.T.C. 325; 18 R.P.R.(3d) 213 (Gen. Div.), refd to. [para. 219].

Statutes Noticed:

Judgment Interest Act, S.A. 1984, c. J-0.5, sect. 2(2)(b)(i), sect. 8 [para. 166].

Authors and Works Noticed:

Alberta, Hansard, Legislative Debates (October 17, 1984), pp. 1181, 1182, 1464, 1465 [para. 186].

Bartel, D.S., Drawing of Negative Inference Upon a Claim of the Attorney-Client Privilege (1995), 60 Brook. L.R. 1355, p. 1355 [para. 123].

Bates and McPhail, Principles on Interest: Judgment Interest in Ontario (1993), 15 Adv. Q. 171, pp. 181 [para. 216]; 182 [para. 216]; 203 [para. 208]; 182 [para. 216].

Canada, Uniform Law Conference of Canada, Prejudgment Interest, Saskatchewan Report (1980), Appendix P, p. 232 [para. 187].

Driedger, Elmer A., Construction of Statutes (2nd Ed. 1983), p. 87 [para. 70]; para. 130 [para. 69].

Hansard (Alta.) - see Alberta, Hansard, Legislative Debates.

Kerans, Roger P., Standards of Review Employed by Appellate Courts (1994), p. 210 [para. 38].

Saxe, D., Judicial Discretion in the Calculation of Prejudgment Interest (1985-86), 6 Adv. Q. 433, generally [para. 205].

Short, D.E., Matters of Interest (1988), 9 Adv. Q. 105, p. 117 [para. 195].

Sopinka, John, and Gelowitz, Mark A., The Conduct of an Appeal (2nd Ed. 2000), pp. 63 to 67 [para. 172]; 64 [para. 172]; 66 [para. 174].

Todd, Eric C.E., The Law of Expropriation and Compensation in Canada (2nd Ed. 1992), pp. 22, 23 [para. 59].

Waddams, Stephen M., The Law of Damages (2001 Looseleaf Ed.), pp. 7.950 [para. 193]; 7.4000 [para. 216].

Waldron, Mary Anne, The Law of Interest in Canada (1992), pp. 142 [para. 197]; 179 [para. 214]; 180 [para. 215]; 437 [para. 191]; 716, 717 [para. 214].

Wigmore on Evidence (3rd Ed. McNaughton Rev. 1961), §2322 [para. 123].

Counsel:

P.E.J. Prentice, Q.C., and G.S. Fitch, for the appellant/respondent, Her Majesty The Queen;

B.P. Kaliel and S. Burghardt, for the respondent/appellant, Nilsson.

These appeals were heard on January 7 and 8, 2002, by Russell and Wittmann, JJ.A., and Watson, J.(ad hoc), of the Alberta Court of Appeal. The court delivered the following reasons for judgment on November 29, 2002.