Clark v. New Brunswick (Minister of Transportation), (2015) 437 N.B.R.(2d) 5 (TD)

Judge:DeWare, J.
Court:Court of Queen's Bench of New Brunswick
Case Date:February 19, 2015
Jurisdiction:New Brunswick
Citations:(2015), 437 N.B.R.(2d) 5 (TD);2015 NBQB 122
 
FREE EXCERPT

Clark v. N.B. (2015), 437 N.B.R.(2d) 5 (TD);

    437 R.N.-B.(2e) 5; 1140 A.P.R. 5

MLB headnote and full text

Sommaire et texte intégral

[English language version only]

[Version en langue anglaise seulement]

.........................

Temp. Cite: [2015] N.B.R.(2d) TBEd. JN.027

Renvoi temp.: [2015] N.B.R.(2d) TBEd. JN.027

In The Matter Of an application for determination of the compensation payable in accordance with the Expropriation Act, chapter E-14, R.S.N.B. 1973, arising out of an expropriation carried out under the said Act.

Andrew Clark and Linda Clark (applicants) v. Province of New Brunswick as Represented by the Minister of Transportation (respondent)

(W/M/8/11; 2015 NBQB 122; 2015 NBBR 122)

Indexed As: Clark v. New Brunswick (Minister of Transportation)

Répertorié: Clark v. New Brunswick (Minister of Transportation)

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Woodstock

DeWare, J.

February 19, 2015.

Summary:

Résumé:

Mr. and Mrs. Clark owned two properties that were expropriated by the Province of New Brunswick in 2004 as part of the construction of a four-lane highway. The Province paid the Clarks $27,100 for the expropriated lands. The Clarks applied under the Expropriation Act for additional compensation on the basis of disturbance, injurious affection, and special economic advantage.

The New Brunswick Court of Queen's Bench, Trial Division, dismissed the application.

Expropriation - Topic 188

Right to compensation - Injurious affection - Severance resulting in restriction of access - Mr. and Mrs. Clark owned a property that was expropriated by the Province of New Brunswick as part of the construction of a four-lane highway - The Clarks previously accessed the property by crossing neighbouring lands - Subsequent to the expropriation, they accessed the property using an access road built by the Province - However, the expropriation also resulted in the property being divided in two, such that the Clarks no longer had access to the westerly 12 acre portion - The Clarks applied under the Expropriation Act for additional compensation on the basis of injurious affection (s. 38(1)(c)) - The New Brunswick Court of Queen's Bench, Trial Division, dismissed the application - The injurious affection to the westerly portion was offset by improvements to the easterly portion as a result of the newly constructed access road - See paragraph 55.

Expropriation - Topic 1305

Measure of compensation - Elements of compensation - Disturbance and inconvenience - Mr. and Mrs. Clark owned a property that was expropriated by the Province of New Brunswick as part of the construction of a four-lane highway - The Clarks had a recreational cabin on the property which sat next to a river - The Clarks applied under the Expropriation Act for additional compensation on the basis of disturbance (s. 38(1)(b)) - They testified that they used to enjoy the sounds of water and birds but now listened to the sound of transport trucks - The New Brunswick Court of Queen's Bench, Trial Division, dismissed the application - The evidence did not substantiate a claim for disturbance - See paragraph 55.

Expropriation - Topic 1313

Measure of compensation - Elements of compensation - Special value to owner - Mr. and Mrs. Clark owned a 13 hectare woodlot and a 26 hectare recreational woodlot that were expropriated by the Province of New Brunswick in 2004 as part of the construction of a four-lane highway - The Province paid the Clarks $27,100 for the expropriated lands - The Clarks applied under the Expropriation Act for additional compensation on the basis of special economic advantage (s. 38(1)(d)) - Mr. Clark testified that he had been assiduously tending to the woodlots since he purchased them in the 1970s in order to create a high quality forest which would yield a similarly elevated rate of return when he chose to harvest the timber during his retirement age - He asserted that he would harvest one cord per acre per year at the rate of $160/cord - The New Brunswick Court of Queen's Bench, Trial Division, dismissed the application - The Clarks provided no evidence to support the submission that the manner in which the woodlots had been managed had resulted in a special economic advantage to them which would not have been available to others - The evidence was that Mr. Clark had extracted perhaps $10,000 from the properties over the course of many years - The value of the timber on the properties in 2004 had been taken into consideration in determining their market value, which was $27,100 - See paragraphs 56 to 65.

Expropriation - Topic 3012

Compensation awards - Particular awards - Woodland - [See Expropriation - Topic 1313 ].

Cases Noticed:

Higgins et al. v. New Brunswick (2005), 285 N.B.R.(2d) 130; 744 A.P.R. 130; 2005 NBQB 237, refd to. [para. 43].

Young v. Moncton (City) (2002), 248 N.B.R.(2d) 360; 646 A.P.R. 360; 2002 NBCA 26, refd to. [para. 45].

National Capital Commission v. Hobbs (1970), 10 D.L.R.(3d) 11 (S.C.C.), refd to. [para. 61].

Authors and Works Noticed:

Todd, E.C.E., The Law of Expropriation and Compensation in Canada (2nd Ed.), pp. 116 to 119 [para. 62]; 131, 132 [para. 47].

Counsel:

Avocats:

James C. Crocco, for the applicants;

Richard A. Williams, for the respondent.

This application was heard on January 6 and 7, 2015, before DeWare, J., of the New Brunswick Court of Queen's Bench, Trial Division, Judicial District of Woodstock, who delivered the following decision on February 19, 2015.

To continue reading

FREE SIGN UP