Billy Club v. Dartmouth (City), (1984) 62 N.S.R.(2d) 30 (TD)

• Judge: Grant, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: January 26, 1984
• Jurisdiction: Nova Scotia
• Citations: (1984), 62 N.S.R.(2d) 30 (TD)

Billy Club v. Dartmouth (1984), 62 N.S.R.(2d) 30 (TD);

    136 A.P.R. 30

MLB headnote and full text

The Billy Club v. Dartmouth, City of

(1983 S.H. No. 44491)

Indexed As: Billy Club v. Dartmouth (City)

Nova Scotia Supreme Court

Trial Division

Grant, J.

January 26, 1984.

Summary:

The premises of The Billy Club (formerly known as The Pans Social and Recreational Club), were expropriated and the club had to relocate. The validity of the expropriation was upheld in a judgment reported at 36 N.S.R.(2d) 633; 64 A.P.R. 633. In a decision reported at 49 N.S.R.(2d) 407; 96 A.P.R. 407, the Nova Scotia Expropriations Compensation Board determined the market value of the expropriated land. Subsequently, in a decision reported at 59 N.S.R.(2d) 92; 125 A.P.R. 92, the board awarded the club $32,296.44 as compensation for disturbance damages. The board disallowed the expropriating authority's claim for a set-off for market rent for the period the club occupied the premises after the authority became entitled to possession. The expropriating authority appealed on the ground, inter alia, that by virtue of s. 27(7) of the Expropriations Act it was mandatory that the board allow the set-off.

The Nova Scotia Supreme Court, Trial Division, dismissed the appeal.

Expropriation - Topic 1078

Measure of compensation - Evidence of value - Expert opinion - Hearsay evidence - At a hearing, the Nova Scotia Expropriations Board admitted hearsay evidence of an expert appraiser but excluded the hearsay evidence of a witness that contradicted the factual basis upon which the expert appraiser's opinion was based - The Nova Scotia Supreme Court, Trial Division, held that the board properly dealt with the evidence - The court stated that hearsay evidence may be given by an expert because an expert is not restricted to opinions based solely on his own personal experiences and observations; whereas an ordinary witness is so restricted - See paragraphs 23 to 27.

Expropriation - Topic 1490

Measure of compensation - Deductions - Set-off for continuing occupation by occupier - The Nova Scotia Expropriations Act, s. 27(7), directed the Expropriation Board, when making awards, to consider the time and circumstances in which a claimant was allowed to remain in occupation of expropriated property after the expropriating authority became entitled to possession - The Nova Scotia Supreme Court, Trial Division, held that by virtue of s. 27 (7) it was mandatory that the board consider any such occupation but the board had a discretion in making an award whether to allow a set-off for occupation rent - See paragraphs 11 to 16.

Expropriation - Topic 2200

Practice and procedure - Appeals - General - Role of judge on appeals under Expropriation Act - The Nova Scotia Supreme Court, Trial Division, reviewed the role of a judge on an appeal under s. 60 of the Expropriation Act, S.N.S. 1973, c. 7 - See paragraphs 7, 8.

Cases Noticed:

Burke v. Province of Nova Scotia (1983), 57 N.S.R.(2d) 1; 120 A.P.R. 1, refd to. [para. 7].

POW Investments Ltd. v. Province of Nova Scotia (1973), 5 N.S.R.(2d) 121, affirmed 9 N.S.R.(2d) 89; 2 N.R. 145, refd to. [para. 7].

Park Projects Limited et al. v. City of Halifax (1982), 50 N.S.R.(2d) 476; 98 A.P.R. 476, refd to. [para. 7].

Reiss and Hammerling v. City of Dartmouth (1979), 36 N.S.R.(2d) 482; 64 A.P.R. 482, refd to. [para. 7].

Statutes Noticed:

Expropriation Act, S.N.S. 1973, c. 7, sect. 27(7) [para. 4]; sect. 60(1) [para. 3]; sect. 69(1) [para. 7].

Counsel:

William H. Kydd, for the appellant;

Bruce W. Evans, for the respondent.

This case was heard before Grant, J., of the Nova Scotia Supreme Court, Trial Division, who delivered the following decision on January 26, 1984: