Higgins v. Nova Scotia (Attorney General) et al.

• Jurisdiction: Nova Scotia
• Court: Court of Appeal of Nova Scotia (Canada)
• Judge: MacDonald, C.J.N.S., Hamilton and Fichaud, JJ.A.
• Citation: (2013), 338 N.S.R.(2d) 316 (CA),2013 NSCA 155
• Date: 22 November 2013

Higgins v. N.S. (A.G.) (2013), 338 N.S.R.(2d) 316 (CA);

    1071 A.P.R. 316

MLB headnote and full text

Temp. Cite: [2013] N.S.R.(2d) TBEd. DE.059

Forrest C. Higgins Jr. (appellant) v. The Attorney General of Nova Scotia Representing Her Majesty the Queen in Right of the Province of Nova Scotia and D.D.V. Gold Limited, a body corporate and the Mining Association of Nova Scotia and Nova Scotia Federation of Agriculture (respondents)

(CA 417846; 2013 NSCA 155)

Indexed As: Higgins v. Nova Scotia (Attorney General) et al.

Nova Scotia Court of Appeal

MacDonald, C.J.N.S., Hamilton and Fichaud, JJ.A.

December 20, 2013.

Summary:

D.D.V. Gold Ltd. tried unsuccessfully over a period of years to buy a parcel of approximately seven acres of land from Higgins, in connection with its plan to develop an open pit gold mine in the Province of Nova Scotia. D.D.V. applied to the Minister of Natural Resources (N.S.) for a vesting order, under s. 70 of the Mineral Resources Act, transferring to it fee simple ownership of the subject land. The Minister granted the vesting order. Higgins appealed. The issues related to procedural fairness and bias.

The Nova Scotia Supreme Court, in a decision reported at [2013] N.S.R.(2d) Uned. 84, dismissed the appeal, holding that the vesting order was validly granted. The applications judge sought written submissions on costs. Before costs were determined, Higgins appealed on the merits (merits appeal).

The Nova Scotia Court of Appeal, in a decision reported at 334 N.S.R.(2d) 190; 1059 A.P.R. 190, dismissed the merits appeal. Higgins applied for leave to appeal to the Supreme Court of Canada and moved for an order staying the vesting order pending the hearing of his application for leave.

The Nova Scotia Court of Appeal, in a decision reported 335 N.S.R.(2d) 292; 1060 A.P.R. 292, per Farrar, J.A., dismissed the motion.

The Nova Scotia Supreme Court, in a decision reported [2013] N.S.R.(2d) Uned. 136, dealt with the costs issues. The court awarded costs under the Civil Procedure Rules, holding that the costs provisions of the Expropriation Act (N.S.) were inapplicable. Higgins appealed.

The Nova Scotia Court of Appeal dismissed the appeal.

Expropriation - Topic 2320

Practice and procedure - Costs - General - A landowner unsuccessfully appealed a vesting order (Mineral Resources Act (N.S.), s. 70), which transferred the fee simple in his land to a gold mine developer - The court ordered the landowner to pay party and party costs (Civil Procedure Rules) - The court held that since this case involved an attack on the validity of the expropriation as distinct from a claim for compensation by the landowner, the costs provisions of the Expropriation Act (N.S.) did not apply - The landowner appealed the costs ruling - The Nova Scotia Court of Appeal dismissed the appeal.

Cases Noticed:

Drum Head Estates Ltd. v. Chapin Estate, [2013] N.S.R.(2d) Uned. 266; 2013 NSCA 132, refd to. [para. 8].

DRL Coachlines Ltd. et al. v. GE Canada Equipment Financing G.P. (2011), 300 N.S.R.(2d) 312; 950 A.P.R. 312; 2011 NSCA 23, refd to. [para. 8].

Awan v. Cumberland Health Authority et al. (2009), 283 N.S.R.(2d) 107; 900 A.P.R. 107; 2009 NSSC 295, affd. (2010), 291 N.S.R.(2d) 292; 922 A.P.R. 292; 2010 NSCA 50, refd to. [para. 8].

Fouillard v. Ellice (Rural Municipality) (2007), 220 Man.R.(2d) 113; 407 W.A.C. 113; 2007 MBCA 108, folld. [para. 11].

Luitkevicuis v. Sydney Mines (Town), 1990 CarswellNS 265 (N.S. Expropriations Board), refd to. [para. 13].

Parks Projects Ltd. v. Halifax (City) (1982), 54 N.S.R.(2d) 116; 112 A.P.R. 116 (C.A.), refd to. [para. 13].

Manitoba v. Russell Inns Ltd. et al. (2013), 291 Man.R.(2d) 244; 570 W.A.C. 244; 2013 MBCA 46, dist. [para. 14].

Alliance Pipeline Ltd. v. Smith, [2011] 1 S.C.R. 160; 412 N.R. 66; 2011 SCC 7, dist. [para. 14].

Hill v. Nova Scotia (Attorney General), [1997] 1 S.C.R. 69; 206 N.R. 299; 157 N.S.R.(2d) 81; 462 A.P.R. 81, dist. [para. 14].

Statutes Noticed:

Expropriation Act, R.S.N.S. 1989, c. 156, sect. 52 [para. 10].

Authors and Works Noticed:

Orkin, M.M., Law of Costs (2nd Ed.), p. 2-236.11 [para. 10].

Counsel:

Jeremy P. Smith and Robert H. Pineo, for the appellant;

Darlene Willcott, for the respondent, The Attorney General of Nova Scotia;

John Keith and Jeffrey Flinn, for the respondent, D.D.V. Gold Limited.

This appeal was heard in Halifax, N.S., on November 22, 2013, before MacDonald, C.J.N.S., Hamilton and Fichaud, JJ.A., of the Nova Scotia Court of Appeal. The following decision was delivered for the court by Hamilton, J.A., on December 20, 2013.