Gardiner Burton Agencies Ltd. v. Nova Scotia Power Corp., (1986) 78 N.S.R.(2d) 304 (TD)

• Judge: Burchell, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: December 18, 1986
• Jurisdiction: Nova Scotia
• Citations: (1986), 78 N.S.R.(2d) 304 (TD)

Gardiner Burton v. N.S. Power (1986), 78 N.S.R.(2d) 304 (TD);

    193 A.P.R. 304

MLB headnote and full text

Gardiner Burton Agencies Limited v. Nova Scotia Power Corporation

(S.H. No. 55059)

Indexed As: Gardiner Burton Agencies Ltd. v. Nova Scotia Power Corp.

Nova Scotia Supreme Court

Trial Division

Burchell, J.

December 18, 1986.

Summary:

A motel was located on a peninsula that tailed off into a long sand bar surrounded by the Strait of Canso. Nova Scotia Power expropriated 16,000 sq. ft. of the sandbar to erect the largest transmission tower in Nova Scotia. The Expropriations Compensation Board awarded the owner $900.00 for the market value of the expropriated land, $55,000.00 for injurious affection and $4,560.00 for business interruption. The owner appealed under s. 60(1) of the Expropriations Act.

The Nova Scotia Supreme Court, Trial Division, allowed the appeal. The court affirmed the $900.00 award for the market value of the expropriated land and increased the award for injurious affection from $55,000.00 to $187,000.00, and the award for business interruption from $4,560.00 to $6,700.00.

Expropriation - Topic 1037

Measure of compensation - Methods of valuation - Gross income multiplier approach - The Nova Scotia Supreme Court, Trial Division, stated that where there is an insufficiency of cost information it may be of some use to approximate the value of revenue using the "gross income multiplier", but the method is unreliable and should only be used as a quick and simple way of checking valuations derived by other methods - See paragraphs 16 to 17.

Expropriation - Topic 1040

Measure of compensation - Methods of valuation - Before and after method - A motel was located on a peninsula that tailed off into a long sand bar surrounded by water - Nova Scotia Power expropriated 16,000 sq. ft. of the sand bar to erect the largest transmission tower in Nova Scotia - The tower had an unshielded stroboscopic light and was only 400 ft. from the motel - The tower "made a hideous change in what was formerly a uniquely attractive site" and adversely affected the motel's income - The Nova Scotia Supreme Court, Trial Division, increased the compensation awarded for injurious affection from $55,000.00 to $187,000.00 on the basis of the before and after market value of the property using the income approach - See paragraphs 6 to 27.

Expropriation - Topic 2207

Practice and procedure - Appeals - Scope of review - A landowner appealed a compensation award by the Expropriations Compensation Board under s. 60(1) of the Expropriations Act - The Nova Scotia Supreme Court, Trial Division, held that it could review any question of law or fact or mixed law and fact and any inferences which should be drawn from the facts - The court discussed the consideration to be given to the board's expertise and agreed that the issue on an appeal was "whether the board made some palpable and overriding error which affected its assessment of the facts" - See paragraphs 2 to 3.

Expropriation - Topic 3055

Compensation awards - Expenses incurred after expropriation - The Nova Scotia Supreme Court, Trial Division, applied the general rule that an owner was not entitled to compensation for post-expropriation capital expenditures - See paragraphs 28 to 31.

Expropriation - Topic 3103

Compensation awards - Injurious affection - Business losses - [See Expropriation - Topic 1040 above].

Cases Noticed:

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

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

Reiss and Hammerling v. Dartmouth (1980), 36 N.S.R.(2d) 472; 64 A.P.R. 472, refd to. [para. 3].

Drew v. The Queen, [1961] S.C.R. 614; 29 D.L.R.(2d) 114, refd to. [para. 22].

Zapuchlak v. Minister of Transportation and Communications, 3 L.C.R. 256, affd. 5 L.C.R. 256, refd to. [para. 22].

The King v. Moreau (1921), 21 Ex. C.R. 82, refd to. [para. 31].

Statutes Noticed:

Expropriations Act, S.N.S. 1973, c. 7, sect. 53(1), sect. 53(4) [para. 37]; sect. 60(1) [para. 1].

Authors and Works Noticed:

Todd, The Law of Expropriation (1st Ed.), p. 167 [paras. 16, 17].

Counsel:

D.W. Gruchy, Q.C., and R.B. MacLellan, for the appellant;

A.W. Cox and P.W. Gurnham, for the respondent.

This appeal was heard on September 24 and 25, 1986, at Halifax, Nova Scotia, before Burchell, J., of the Nova Scotia Supreme Court, Trial Division, who delivered the following judgment on December 18, 1986.