Gordon v. New Brunswick, (1988) 90 N.B.R.(2d) 129 (TD)

• Judge: Stevenson, J.
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Case Date: September 14, 1988
• Jurisdiction: New Brunswick
• Citations: (1988), 90 N.B.R.(2d) 129 (TD)

Gordon v. N.B. (1988), 90 N.B.R.(2d) 129 (TD);

    90 R.N.-B.(2e) 129; 228 A.P.R. 129

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Morton Gordon (applicant) v. Province of New Brunswick (respondent)

(F/M/23/84)

Indexed As: Gordon v. New Brunswick

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Fredericton

Stevenson, J.

September 14, 1988.

Summary:

The Province of New Brunswick expropriated land for establishment of a deep water project at Lorneville in the City of Saint John. Included in the property expropriated were nine mining claims belonging to Gordon. Gordon applied to have compensation determined.

The New Brunswick Court of Queen's Bench, Trial Division, determined compensation accordingly.

Expropriation - Topic 1132

Compensation - Measure of - Potential value - Relevance of events subsequent to taking - The New Brunswick Court of Queen's Bench, Trial Division, stated that "evidence of facts occurring after an expropriation may be considered subject to the question of the weight to be given to such evidence. Evidence of subsequent sales or of acquisition of a new site by the owner, for instance, may be relevant" - See paragraph 80.

Expropriation - Topic 1656

Compensation - Measure of - Interest - Rate of - In 1988 Gordon sought to have compensation determined for mining claims expropriated in 1971 - The New Brunswick Court of Queen's Bench, Trial Division, held that pursuant to s. 57 of the Expropriation Act, 1973, the compensation was to be determined by the law in force prior to 1974 - Under the applicable Expropriation Act (1952), there was no provision for interest on compensation awards - The court thus adopted the accepted practice at the time of the expropriation, i.e., allowing simple interest at the rate of 5% - See paragraphs 89, 90.

Expropriation - Topic 2320

Practice - Costs - General - In 1988 Gordon sought to have compensation determined for mining claims expropriated in 1971 - The New Brunswick Court of Queen's Bench, Trial Division, held that pursuant to s. 57 of the Expropriation Act, 1973, the compensation was to be determined by the law in force prior to 1974 - The court held that this included the matter of costs and applied the rules respecting costs set out in the Expropriation Act, 1952, which was the law in effect prior to 1974 - See paragraphs 91, 92.

Expropriation - Topic 3024

Compensation - Awards - Mining claims - Gordon owned nine mining claims in the Lorneville Area of New Brunswick which were expropriated by the Province in 1971 - Within the areas of the claims there was a substantial deposit of silica in the form of quartzite - Gordon sought to have compensation determined - The New Brunswick Court of Queen's Bench, Trial Division, held that pursuant to s. 57 of the Expropriation Act, 1973, the compensation was to be determined by the law in force prior to 1974 - The court discussed the valuation of the claims and awarded $75,000.00 compensation plus simple interest at 5% per year from 1971.

Cases Noticed:

New Brunswick v. Gordon (1979), 27 N.B.R.(2d) 110; 60 A.P.R. 110; 19 L.C.R. 29, refd to. [para. 5].

Fraser v. R., [1963] S.C.R. 455, not appld. [para. 77].

Kildonan Concrete Products Ltd. v. City of Winnipeg (1974), 7 L.C.R. 42 (Man. C.A.), dist. [paras. 77, 78].

Bwllfa & Merthyr Dare Steam Collieries (1891) Ltd. v. Pontypridd Waterworks Co., [1903] A.C. 426, refd to. [para. 80].

Johnson v. Minister of Transportation and Public Works (1972), 3 L.C.R. 386 (Ont. L.C.B.), refd to. [para. 80].

Westphal Estates Ltd. v. Nova Scotia (1974), 16 N.S.R.(2d) 53; 16 A.P.R. 53; 7 L.C.R. 234 (N.S.S.C.), refd to. [para. 80].

Leclerc v. Province of New Brunswick (1970), 2 N.B.R.(2d) 704, refd to. [para. 90].

Statutes Noticed:

Expropriation Act, R.S.N.B. 1952, c. 77, sect. 11 [para. 4].

Expropriation Act, R.S.N.B. 1973, c. E-14, sect. 57 [para. 3].

Authors and Works Noticed:

Todd, The Law of Expropriation (1976), pp. 98-100 [para. 80].

Counsel:

E.J. Mockler, Q.C., and Robert J. Peters, for the applicant;

Peter A. MacNutt, for the respondent.

This case was heard on March 21-25 and June 13-16, 1988, before Stevenson, J., of the New Brunswick Court of Queen's Bench, Trial Division, who delivered the following decision on September 14, 1988.