Franklin and Herschorn Ltd. v. Saint John (City), (1972) 4 N.B.R.(2d) 360 (CA)

• Judge: Limerick, Hughes and Bugold, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: May 05, 1971
• Jurisdiction: New Brunswick
• Citations: (1972), 4 N.B.R.(2d) 360 (CA)

Franklin v. Saint John (1972), 4 N.B.R.(2d) 360 (CA);

    4 R.N.-B.(2e) 360

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Franklin and Herschorn Ltd. v. City of Saint John

Indexed As: Franklin and Herschorn Ltd. v. Saint John (City)

Répertorié: Franklin and Herschorn Ltd. v. Saint John (City)

New Brunswick Court of Appeal

Limerick, Hughes and Bugold, JJ.A.

January 28, 1972.

Summary:

Résumé:

The New Brunswick Court of Appeal dismissed the appeal but set aside portions of a compensation award of the Land Compensation Board because of the application of an erroneous principle. The City of Saint John expropriated a 27,000 square foot lot of land and a building in downtown Saint John for highway purposes. The building was a converted movie theatre and was used by the owners for the operation of a tavern. The Land Compensation

Board made an award of $166,950.00 broken down as follows:

1. Land $ 54,000.00

2. Building 87,000.00

3. Equipment 10,000.00

4. Business disturbance 15,000.00

5. Miscellaneous expense       950.00

TOTAL $166,950.00

The New Brunswick Court of Appeal reduced the award of the Land Compensation

Board to $154,950.00 broken down as follows:

1. Land and buildings $ 54,000.00

2. Special value to the owner 100,000.00

3. Miscellaneous expense       950.00

TOTAL $154,950.00

The New Brunswick Court of Appeal stated that the effect of the expropriation was to put the owner out of the tavern business because the tavern license attached to the premises expropriated and was not transferable. In such circumstances the appeal court stated that the owner should be compensated on the basis of the market value of the lands and buildings plus the special value to the owner of the property taken. The appeal court stated that the award should not be based on replacement cost of the premises and the cost of relocation of the tavern business.

The New Brunswick Court of Appeal fixed the special value to the owner at $100,000.00 by calculating the present value of the future loss of profits from the tavern business.

Hughes, J., dissenting with respect to the method of calculation of special value to the owner, would have fixed the special value to the owner of the land at $54,000.00 and of the building at $90,549.00. Hughes, J., would have valued the building by capitalizing the annual income from the building of $14,373.00 by using a capitalization factor of 6.3.

The New Brunswick Court of Appeal stated that expenses incurred by an owner in preparation for a hearing before the Land Compensation Board for surveyors, photographers etc., should not be claimed as part of a compensation award. The appeal court stated that such expenses are part of the party and party costs under the schedule of costs of the Land Compensation Board and must be taxed by the Registrar of the Supreme Court as expenses necessarily and reasonably incurred.

Expropriation - Topic 1313

Measure of compensation - Elements of compensation - Special value to owner - 27,000 square foot lot of land and building in downtown Saint John taken by the City of Saint John for highway purposes - Building was a converted theatre and was used by the owners for the operation of a tavern - The New Brunswick Court of Appeal held that where an expropriation has the effect of terminating an owner's business that the owner should be compensated on the basis of the market value of the lands and buildings plus an additional amount for special value to the owner of the lands and buildings taken.

Practice - Topic 7133

Costs - Party and party costs - Disbursements - Expenses for surveyors, photographers, accountants, etc. - Land Compensation Board schedule of costs - The New Brunswick Court of Appeal held that expenses incurred for surveyors, etc., are not allowable as part of a compensation award but must be taxed by the registrar of the Supreme Court as expenses necessarily and reasonably incurred.

Cases Noticed:

Saint John Harbour Bridge Authority v. J.M. Driscoll Limited, [1968] S.C.R. 633; 68 D.L.R.(2d) 502, folld.

Assaf v. Toronto, [1953] 4 D.L.R. 466, folld.

Counsel:

Donald M. Gillis, Q.C., for the claimant-appellant;

Deno P. Pappas, for the respondent.

Appeal from a decision of the Land Compensation Board dated May 5, 1971, determining a compensation award for land and buildings expropriated by the City of Saint John, which decision is reported in this volume (4 N.B.R.(2d) 399).

Bugold, J.A., concurred with Limerick, J.A.