Lasade Enterprises Ltd. v. Newfoundland, (1993) 114 Nfld. & P.E.I.R. 19 (NFCA)

• Judge: Gushue, Marshall and Cameron, JJ.A.
• Court: Court of Appeal (Newfoundland)
• Case Date: June 22, 1993
• Jurisdiction: Newfoundland and Labrador
• Citations: (1993), 114 Nfld. & P.E.I.R. 19 (NFCA)

Lasade Ent. Ltd. v. Nfld. (1993), 114 Nfld. & P.E.I.R. 19 (NFCA);

    356 A.P.R. 19

MLB headnote and full text

Lasade Enterprises Limited (appellant/respondent by cross-appeal) v. Her Majesty In Right of Newfoundland (respondent/appellant by cross-appeal)

(1992 No. 215)

Indexed As: Lasade Enterprises Ltd. v. Newfoundland

Newfoundland Supreme Court

Court of Appeal

Gushue, Marshall and Cameron, JJ.A.

November 8, 1993.

Summary:

The Newfoundland government expropri­ated land owned by Lasade to construct a bypass on the Trans Canada Highway. The land was vacant at the time of expropriation. A board of arbitrators awarded Lasade $543,720. Lasade appealed and the govern­ment cross-appealed.

The Newfoundland Supreme Court, Court of Appeal, dis­missed the appeal and the cross-appeal.

Evidence - Topic 1527

Hearsay rule - Exceptions and exclusions - Where admission of hearsay necessary and evi­dence reliable - During a hearing to determine ap­pro­priate compensation for expropriated land, a board of arbitrators rejected the hearsay evidence of an expert witness about the motivations of previous land­owners in selling their land - The board accepted hearsay evidence of an offer to sell neigh­bouring land - The New­found­land Court of Appeal held that the board correctly disregarded the evi­dence of motivational factors because it lacked cir­cumstantial trustworthiness as the other party did not have the oppor­tunity to ver­ify the information - The court held that the board erred in admitting the hear­say evidence of the offer, but that error did not materially effect the con­clusion - See paragraphs 5 to 23.

Expropriation - Topic 1004

Measure of compensation - Valuation of land - Relevance of loss of value by prior acts of expropriating authority - The city council, at the request of the expropriating authority, imposed a freeze on develop­ment of lands in the area of a proposed new highway - Lasade purchased land after the freeze was imposed - Lasade's land was expropriated - Lasade claimed that the freeze should be ignored when determining the value of the lands - The Newfoundland Court of Appeal held that the expropriating authorities could not take advantage of restrictions imposed for reasons related to the expropriation to obtain a better price - See paragraphs 30 to 36.

Expropriation - Topic 1007

Measure of compensation - Valuation of land - Highest and best use - Determina­tion of - The Newfoundland Court of Appeal stated that highest and best use is assessed on the basis of what is a reason­able expectation at the time of expropri­ation and speculative or unrealistic expec­tations cannot be used to ground the com­pensation - The court held that the board's consideration of profitability, physical and functional limitations, marketability and titular restrictions to determine best use was appropriate in the circumstances - See paragraphs 24 to 29 and 50 to 55.

Expropriation - Topic 1085

Measure of compensation - Evidence of value - Price paid by owner - The New­foundland government expropriated land owned by Lasade - Lasade had recently purchased the land during a development freeze and claimed the price they paid was lower than the true value of the land - The Newfoundland Court of Appeal held that the price paid by Lasade was a very im­portant indicator of value because the original owners knew that the land would be expropriated or released for develop­ment in the future - See paragraphs 39 to 42.

Expropriation - Topic 2203

Practice and procedure - Appeals - Vari­ation of award on appeal - The New­foundland government expropriated land owned by Lasade - A board of arbitrators awarded Lasade $543,720 - The New­foundland Court of Appeal stated that the court will not interfere with the award of a board of arbitrators unless it had pro­ceeded upon a wrong principle of law or had misdirected itself with regard to some material fact resulting in an award of compensation which was clearly excessive or wholly inadequate - The court refused to disturb the board's award as the board had used the evidence before it and accepted methods of valuation in reaching its decision - See paragraphs 4 and 43 to 60.

Expropriation - Topic 2261

Practice and procedure - Evidence - Hear­say - [See Evidence - Topic 1527 ].

Cases Noticed:

Miller et al. v. Newfoundland (1977), 14 Nfld. & P.E.I.R. 110; 33 A.P.R. 110; 13 L.C.R. 322 (Nfld. C.A.), refd to. [paras. 4, 26].

Associated Builders Ltd. v. Minister of Public Works (1978), 19 Nfld. & P.E.I.R. 371; 50 A.P.R. 371 (Nfld. C.A.), refd to. [para. 4].

Atlantic Shopping Centres Ltd. v. St. John's (City) (1985), 56 Nfld. & P.E.I.R. 44; 168 A.P.R. 44 (Nfld. C.A.), refd to. [para. 4].

R. v. O'Brien, [1978] 1 S.C.R. 591; 16 N.R. 271, refd to. [para. 6].

R. v. Lavallee, [1990] 1 S.C.R. 852; 108 N.R. 321; 67 Man.R.(2d) 1; 55 C.C.C.(3d) 97; 76 C.R.(3d) 329; [1990] 4 W.W.R. 1, refd to. [para. 9].

Saint John (City) v. Irving Oil Co., [1966] S.C.R. 581; 58 D.L.R.(2d) 404, refd to. [para. 10].

Teperman & Sons Ltd. v. Toronto (City) (1976), 12 L.C.R. 84 (C.A.), refd to. [para. 15].

Billy Club v. Dartmouth (City) (1984), 62 N.S.R.(2d) 30; 136 A.P.R. 30; 30 L.C.R. 33 (T.D.), refd to. [para. 15].

Farlinger Developments Ltd. v. East York (Borough) (1975), 8 L.C.R. 112; 9 O.R.(2d) 553; 61 D.L.R.(3d) 193 (Ont. C.A.), refd to. [para. 28].

Halliday's Estate v. Newfoundland Light and Power Co. (1980), 29 Nfld. & P.E.I.R. 212; 82 A.P.R. 212; 20 L.C.R. 325 (Nfld. C.A.), refd to. [para. 32].

Kramer et al. v. Wascana Centre Author­ity, [1967] S.C.R. 237, refd to. [para. 33].

R. v. Jewish Community Centre of Edmonton Trust (1983), 27 L.C.R. 333 (Alta.), refd to. [para. 34].

Aldo Recreational Park Ltd. v. Metropoli­tan Toronto & Region Conservation Authority (1975), 9 L.C.R. 102 (Ont. C.A.), refd to. [para. 40].

LaCoste v. Cedar Rapids Manufacturing & Power Co., [1928] 2 D.L.R. 1 (P.C.), refd to. [para. 44].

Marcus v. Canada National Capital Com­mission, [1970] S.C.R. 39; 8 D.L.R.(3d) 671, refd to. [para. 44].

Westphal Estates Ltd., Re (1976), 17 N.S.R.(2d) 273; 19 A.P.R. 273; 10 L.C.R. 289 (C.A.), refd to. [para. 44].

Guido v. Canada (Ministry of Transporta­tion & Communications) (1977), 13 L.C.R. 97 (Ont. C.A.), refd to. [para. 51].

Statutes Noticed:

Expropriation Act, R.S.N. 1970, c. 121, sect. 27(a), sect. 27(b) [para. 24]; sect. 34 [para. 63]; sect. 35, sect. 36 [para. 61].

Authors and Works Noticed:

Boyd, Kenneth J., Expropriation in Canada, p. 139 [para. 48].

North, Lincoln W., The Concept of Highest and Best Use (Article), The Research and Development Fund of the Appraisal Institute of Canada, p. 3 [para. 29].

Sopinka, Lederman and Bryant, The Law of Evidence in Canada, p. 547 [para. 6].

Counsel:

Graham Watton, Q.C., for the appellant;

Bruce Piller, for the respondent.

This appeal was heard on June 22, 1993, before Gushue, Marshall and Cameron, JJ.A., of the Newfoundland Supreme Court, Court of Appeal. The decision of the court was delivered by Cameron, J.A., on Novem­ber 8, 1993.