MacKay and Settle v. Manitoba, (1998) 131 Man.R.(2d) 302 (CA)

• Judge: Huband, Philp and Twaddle, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: June 18, 1998
• Jurisdiction: Manitoba
• Citations: (1998), 131 Man.R.(2d) 302 (CA)

MacKay v. Man. (1998), 131 Man.R.(2d) 302 (CA);

      187 W.A.C. 302

MLB headnote and full text

Temp. Cite: [1998] Man.R.(2d) TBEd. OC.024

Murdoch MacKay and Colon Cameron Settle (tenants/appellants) v. Her Majesty The Queen in right of the Province of Manitoba (authority/respondent)

(AI 98-30-03600)

Indexed As: MacKay and Settle v. Manitoba

Manitoba Court of Appeal

Huband, Philp and Twaddle, JJ.A.

September 28, 1998.

Summary:

The Province of Manitoba expropriated an office building in which MacKay and Settle were tenants. There were six and one half months remaining on the lease, but the tenants had an option to renew the lease for a further five years at a rent to be agreed upon or fixed by arbitration. The tenants found new premises at a higher rent. In their claim for compensation, the tenants included a claim for "rent differential" for the remain­der of the lease and for the five year renewal period. The rent differential for the remain­der of the lease was paid. The Land Value Appraisal Commission subsequently certified that $105,183 represented the compensation for their disturbance loss for increased rent during the five year renewal period. The Province applied to quash the Commission's decision.

The Manitoba Court of Queen's Bench, in a decision reported at 87 Man.R.(2d) 285, allowed the application, holding that the rent differential was not compensable. The ten­ants appealed.

The Manitoba Court of Appeal, in a deci­sion reported at 92 Man.R.(2d) 167; 61 W.A.C. 167, dismissed the appeal.

The tenants applied under the Expropri­ation Act to have their due compensation determined by the Court of Queen's Bench. The Province moved to strike out the notice of application.

The Manitoba Court of Queen's Bench, in a decision reported at 124 Man.R.(2d) 110, granted the motion and struck out the notice of application on the ground that it did not allege a reasonable cause of action against the Province and was res judicata. The tenants appealed.

The Manitoba Court of Appeal dismissed the appeal.

Editor's Note: For other proceedings involv­ing these parties see 80 Man.R.(2d) 76 and 83 Man.R.(2d) 197; 36 W.A.C. 197.

Estoppel - Topic 386

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - Issues decided in prior proceedings - [See Expropriation - Topic 1155.1 ].

Expropriation - Topic 117

Right to compensation - Compensable interests - Leasehold interest - [See Expro­priation - Topic 1155.1 ].

Expropriation - Topic 1155.1

Measure of compensation - Special inter­ests - Leaseholds - Right of renewal - The Province expropriated an office building in which MacKay and Settle were tenants - There lease was about to expire, but the tenants had an option to renew for a fur­ther five years at a rent to be agreed upon or fixed by arbitration - The tenants found new premises at a higher rent - In their claim for compensation, the tenants included a claim for "rent differential" for the five year renewal period - The Land Value Appraisal Commission assessed compensation for the increased rent during the renewal period - The Manitoba Court of Queen's Bench quashed the decision, holding that the rent differential was not compensable - The Manitoba Court of Appeal affirmed the decision - The tenants applied under the Expropriation Act to have their due compensation determined by the Court of Queen's Bench - The Manito­ba Court of Queen's Bench struck out the application on the ground that it did not allege a reasonable cause of action against the Province and was res judicata - The tenants appealed - The Manitoba Court of Appeal dismissed the appeal - Although framed in different words, the claim raised the same issue that was before the court in the earlier proceedings.

Cases Noticed:

Carl-Zeiss-Stiftung v. Rayner and Keeler Ltd. (No. 2), [1966] 2 All E.R. 536 (H.L.), refd to. [para. 13].

Angle v. Minister of National Revenue, [1975] 2 S.C.R. 248; 2 N.R. 397, refd to. [para. 13].

Solomon v. Smith and Montreal Trust Co. (1987), 49 Man.R.(2d) 252 (C.A.), refd to. [para. 13].

Sunderland v. Brockville (Town) (1961), 29 D.L.R.(2d) 119 (Ont. C.A.), refd to. [para. 16].

Canada SS. Lines Ltd. & Toronto Ter­minals R. Co., Re, [1930] 4 D.L.R. 626 (Ont. C.A.), refd to. [para. 16].

Authors and Works Noticed:

Todd, E.C.E., The Law of Expropriation and Compensation in Canada (2nd Ed. 1992), p. 415 [para. 16].

Counsel:

S. Green, Q.C., for the appellants;

W.G. McFetridge, for the respondent.

This appeal was heard on June 18, 1998, before Huband, Philp and Twaddle, JJ.A., of the Manitoba Court of Appeal. The follow­ing judgment of the Court of Appeal was delivered by Philp, J.A., on September 28, 1998.