Hill v. Nova Scotia (Attorney General)

• Jurisdiction: Federal Jurisdiction (Canada)
• Court: Supreme Court (Canada)
• Judge: Cory, McLachlin, Iacobucci and Major, JJ.
• Citation: (1997), 206 N.R. 299 (SCC),1997 CanLII 401 (SCC),206 NR 299,462 APR 81,[1997] SCJ No 7 (QL),[1997] ACS no 7,157 NSR (2d) 81,68 ACWS (3d) 666,JE 97-295,[1997] 1 SCR 69,142 DLR (4th) 230
• Date: 30 January 1997

Hill v. N.S. (A.G.) (1997), 206 N.R. 299 (SCC)

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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Arthur Hill and Angus Hill (appellants) v. The Attorney General of Nova Scotia (respondent)

(24782)

Indexed As: Hill v. Nova Scotia (Attorney General)

Supreme Court of Canada

L'Heureux-Dubé, Sopinka, Gonthier,

Cory, McLachlin, Iacobucci

and Major, JJ.

January 30, 1997.

Summary:

A portion of Hill's farm was expropriated in the 1960's for the Trans Canada Highway. The Crown verbally agreed to construct permanent access ramps to permit Hill access to both sides of his land, which was split by the highway. Hill negotiated compensation on the basis of such permanent access. The ramps were maintained for 27 years, then removed. Hill sold his farm to his sons. The Crown claimed the Hills were no longer entitled to access. The Hills applied for a declaration that they had an interest in the land which was affected, thereby entitling them to seek compensation for injurious affection under the Expropriation Act.

The Nova Scotia Supreme Court, in a judgment reported 132 N.S.R.(2d) 265; 376 A.P.R. 265, allowed the application. Hill had obtained an equitable easement which ran with the land and had to be expropriated to be extinguished. Such expropriation entitled the Hills to compensation for injurious affection. The Crown appealed the finding that Hill had an interest in the property. The Hills cross-appealed the costs award.

The Nova Scotia Court of Appeal, Freeman, J.A., dissenting, in a judgment reported 140 N.S.R.(2d) 116; 399 A.P.R. 116, allowed the appeal and dismissed the crossappeal. The Hills appealed.

The Supreme Court of Canada allowed the appeal and restored the trial judge's order.

Contracts - Topic 8005

Statute of Frauds - Part performance - General - [See Real Property - Topic 7006 ].

Expropriation - Topic 109

Right to compensation - Compensable interests - Equitable interests - [See Real Property - Topic 7006 ].

Real Property - Topic 7006

Easements, licences and prescriptive rights - Equitable easement - A portion of Hill's farm was expropriated in the 1960's for a highway - The Crown verbally and by letters agreed to construct access ramps to permit Hill access to both sides of his land, which was split by the highway - Hill negotiated compensation based on such permanent access - Hill released the Crown from all present and future claims for the expropriation, for damages resulting from the expropriation and for injurious affection - The ramps were maintained for 27 years, then removed - Hill's sons claimed an interest in the land entitling them to seek compensation for injurious affection under the Expropriation Act - The Supreme Court of Canada held that Hill acquired an equitable permission or interest to enter upon and cross the highway - Although s. 21(1)(a) of the Public Highways Act required written permission, and assuming the writing requirement was not satisfied, s. 21(1)(a) merely reflected the Statute of Frauds and the doctrine of part performance precluded the Crown from relying on s. 21(1)(a) - The court held that an equitable permission constituted a compensable interest in land (Expropriation Act, s. 1(c)) - The release did not contemplate or affect the interest in land.

Releases - Topic 4121

Operation - Interests released - General - [See Real Property - Topic 7006 ].

Cases Noticed:

Steadman v. Steadman, [1976] A.C. 536 (H.L.), refd to. [para. 8].

Daigle et al. v. Claire (Village) (1986), 70 N.B.R.(2d) 129; 179 A.P.R. 129 (T.D.), refd to. [para. 11].

Crabb v. Arun District Council, [1975] 3 All E.R. 865 (C.A.), refd to. [para. 11].

Howell v. Falmouth Boat Construction Co., [1951] A.C. 837 (H.L.), not folld. [para. 16].

White, Fluhman and Eddy v. Central Trust Co. and Smith Estate (1984), 54 N.B.R.(2d) 293; 140 A.P.R. 293 (C.A.), refd to. [para. 20].

Statutes Noticed:

Expropriation Act, R.S.N.S. 1954, c. 91, sect. 1(c) [para. 15]; sect. 21(1), sect. 25 [para. 13].

Public Highways Act, R.S.N.S. 1954, c. 235, sect. 21(1)(a) [para. 12].

Counsel:

Douglas A. Caldwell, Q.C., and Lloyd I. Berliner, for the appellants;

Alexander M. Cameron and Margaret MacInnis, for the respondent.

Solicitors of Record:

Patterson, Palmer, Hunt, Murphy, Truro, N.S., for the appellants;

Attorney General of Nova Scotia, Halifax, N.S., for the respondent.

This appeal was heard on November 27, 1996, before L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major, JJ., of the Supreme Court of Canada.

On January 30, 1997, Cory, J., delivered the following judgment in both official languages for the Supreme Court of Canada.