Archibald, Galon and Galon (John) Insurance Services Ltd. v. Regina (City), (1983) 23 Sask.R. 307 (QB)

• Judge: Maurice, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: April 04, 1983
• Jurisdiction: Saskatchewan
• Citations: (1983), 23 Sask.R. 307 (QB)

Archibald v. Regina (City) (1983), 23 Sask.R. 307 (QB)

MLB headnote and full text

Archibald, Galon and John Galon Insurance Services Ltd. v. Regina, City of

(No. 613 A.D. 1981)

Indexed As: Archibald, Galon and Galon (John) Insurance Services Ltd. v. Regina (City)

Saskatchewan Court of Queen's Bench

Judicial Centre of Regina

Maurice, J.

April 4, 1983.

Summary:

This case arose out of a claim for compensation following the expropriation of land. Prior to the expropriation the land was sold. The seller took a mortgage back and leased the land. The buyer claimed compensation for his freehold interest and the seller claimed compensation for the mortgage value and his leasehold interest.

The Saskatchewan Court of Queen's Bench assessed and awarded compensation.

Evidence - Topic 2401

Special modes of proof - Presumptions - Specific presumptions - Inference from failure to call available evidence - Prior to expropriation, land was sold and the seller took a mortgage back and a lease for 10 years - After the expropriation the buyer claimed compensation for his freehold and the seller claimed for the mortgage value and leasehold - The seller did not testify regarding the bona fides of the transaction - The Saskatchewan Court of Queen's Bench drew an adverse inference against the claimants, holding that the seller's testimony would not have supported the bona fides of the transaction - See paragraph 18.

Expropriation - Topic 116

Right to compensation - Compensable interests - Mortgage interest - The Saskatchewan Court of Queen's Bench held that a mortgagee has a right to claim compensation after expropriation of the mortgaged property - See paragraph 40.

Expropriation - Topic 117

Right to compensation - Compensable interests - Leasehold interest - The Saskatchewan Court of Queen's Bench held that a lessee has a right to claim compensation after expropriation of the leased property - See paragraph 29.

Expropriation - Topic 1010

Measure of compensation - Valuation of land - General - Value to owner - The Saskatchewan Court of Queen's Bench stated the test and formula for determining the value of land held by a freehold owner - See paragraphs 14 and 15.

Expropriation - Topic 1010

Measure of compensation - Valuation of land - General - Value to owner - The Saskatchewan Court of Queen's Bench stated the formula for determining compensation for a leasehold interest - See paragraph 32.

Expropriation - Topic 1030

Measure of compensation - Methods of valuation - Business property - 1.5 lots of property near central downtown Regina were expropriated for an expressway - Two storey brick building on property was leased for office purposes - The Saskatchewan Court of Queen's Bench held that the economic approach to valuation of the land and building should be used - See paragraph 23.

Expropriation - Topic 1042

Measure of compensation - Methods of valuation - Where property not used for "highest and best use" - The Saskatchewan Court of Queen's Bench held that the rule against double recovery prevented a lessee from claiming compensation for use of a building for retail and office purposes plus disturbance damages, because the building was only used for office purposes and retail and office purposes together was a higher and better use - See paragraph 37.

Expropriation - Topic 1079

Measure of compensation - Evidence of value - Amounts paid for expropriated property - Knowing that the municipality was interested in buying his property, a landowner sold the property, took a mortgage back and leased the property - The Saskatchewan Court of Queen's Bench refused to use the sale price for determining compensation after expropriation because the sale was the result of a contrived agreement and not representative of market value - See paragraph 16.

Expropriation - Topic 1156

Measure of compensation - Special interests - Leaseholds - Disturbance costs - The Saskatchewan Court of Queen's Bench awarded a lessee, an insurance business, disturbance damages after expropriation of their leasehold interest - The court defined disturbance damages - The court also deducted an amount for income tax from the award for disturbance damages - See paragraphs 41 to 61.

Expropriation - Topic 1305

Measure of compensation - Elements of compensation - Disturbance and inconvenience - The Saskatchewan Court of Queen's Bench stated that if market value is based on the existing use of the property then the owner is also entitled to compensation for disturbance damages and special value - See paragraph 25.

Expropriation - Topic 1313

Measure of compensation - Elements of compensation - Special value to owner - The Saskatchewan Court of Queen's Bench stated that if market value is based on the existing use of the property then the owner is also entitled to compensation for disturbance damages and special value - The court defined special value - See paragraph 25.

Expropriation - Topic 1373

Measure of compensation - Business interests - Net profits - Deduction for income tax - The Saskatchewan Court of Queen's Bench deducted an amount for income tax from an award for disturbance damages granted to a lessee, an insurance business, after the leased property was expropriated - See paragraphs 41 to 61.

Expropriation - Topic 1651

Measure of compensation - Interest - General principles - The Saskatchewan Court of Queen's Bench awarded interest on a compensation award, including disturbance damages, using a compound rate of interest - See paragraphs 65 and 66.

Expropriation - Topic 2322

Practice and procedure - Costs - Discretionary power - The Saskatchewan Court of Queen's Bench held that costs are discretionary when the compensation award is greater than the amount tendered by the expropriating authority - The court stated the principles to apply when exercising the discretion - The court refused to award a successful claimant costs because the claimant was involved in a contrived agreement to increase the amount of compensation - The court awarded the expropriating authority its costs - See paragraphs 67 and 68.

Cases Noticed:

Saskatoon v. Smith-Roles Ltd., [1978] 5 W.W.R. 79; 22 N.R. 111, refd to. [para. 13].

Diggon-Hibben Ltd. v. R., [1949] S.C.R. 712, folld. [para. 14].

National Capital Commission v. Budd et al., [1968] 1 Ex. C.R. 402, consd. [para. 15].

Murray v. City of Saskatoon (No. 2) (1951), 4 W.W.R.(N.S.) 234, refd to. [para. 18].

Riverdale Terrace Ltd. v. Metro Toronto, 36 D.L.R.(2d) 289, consd. [para. 31].

Re Frankel Steel Construction Ltd. v. Metropolitan Toronto (1966), 58 D.L.R.(2d) 578, affd., [1970] S.C.R. 726, consd. [para. 32].

Horn v. Sunderland Corporation, [1941] 2 K.B. 26, refd to. [para. 37].

Harvey v. Crawley Development Corporation, [1957] 1 Q.B. 485, consd. [para. 42].

Drew v. The Queen, 29 D.L.R.(2d) 114, consd. [para. 54].

Florence Realty Co. Ltd. v. The Queen, 65 D.L.R.(2d) 136, consd. [para. 57].

British Pacific Properties Ltd. v. Minister of Highways and Public Works, [1980] 2 S.C.R. 284; 33 N.R. 98, refd to. [para. 65].

Schindel v. Yorkton, City of (1982), 18 Sask.R. 42, refd to. [para. 65].

White, White and Radio Supply & Service Ltd. v. R., [1977] 3 W.W.R. 158, refd to. [para. 66].

Silk-O-Lina Ltd. v. Saskatchewan Telecommunications (1980), 2 Sask.R. 23, refd to. [para. 66].

Junek et al. v. Rural Municipality of Fertile Belt No. 183 (1973), 4 L.C.R. 270, consd. [para. 67].

Statutes Noticed:

Municipal Expropriation Act, R.S.S. 1978, c. M-27, sect. 2(c), sect. 2(f) [para. 29]; sect. 9 [para. 12].

Counsel:

R.M. Barr, Q.C., and H.P. Long, for the claimant, Archibald;

K.G. Love and W.T. Stodalka, for the claimants, John William Galon and John Galon Insurance Services Ltd.;

E.J. Moss, Q.C., and W.L. Softley, for the respondent.

This case was heard by MAURICE, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Regina, who on April 4, 1983, delivered the following decision.