MacKay and Settle v. Manitoba, (1997) 124 Man.R.(2d) 110 (QB)

• Judge: Nurgitz, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: December 23, 1997
• Jurisdiction: Manitoba
• Citations: (1997), 124 Man.R.(2d) 110 (QB)

MacKay v. Man. (1997), 124 Man.R.(2d) 110 (QB)

MLB headnote and full text

Temp. Cite: [1998] Man.R.(2d) TBEd. JA.007

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

(File No. CI 91-01-46659)

Indexed As: MacKay and Settle v. Manitoba

Manitoba Court of Queen's Bench

Winnipeg Centre

Nurgitz, J.

December 23, 1997.

Summary:

The Province of Manitoba expropriated an office building in which MacKay and Settle were tenants. The tenants' lease was about to expire, but they had a right of renewal for a further five years at a rent to be agreed upon or determined by arbitration. The tenants moved to another building at a higher rent. The tenants filed a notice of application claiming compensation for the difference between the rent paid at the new building and the amount which the tenants would have paid at the expropriated building if they had renewed the lease at the same rent. The Province brought a motion to strike out the notice of application.

The Manitoba Court of Queen's Bench granted the motion and struck out the notice of application.

Estoppel - Topic 386

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - Issues decided in prior proceedings - The Province of Manitoba expropriated an office building in which MacKay and Settle were tenants - The tenants' lease was about to expire, but they had a right of renewal for a further five years at a rent to be agreed upon or determined by arbi­tration - The tenants moved to another building at a higher rent - The tenants claimed compensation for the difference between the rent paid at the new building and the amount which the tenants would have paid at the expropriated building if they had renewed the lease at the same rent - The Manitoba Court of Queen's Bench held that the issue was res judicata - The Manitoba courts had rendered a final decision on the issue in an earlier proceed­ing to quash a certificate issued to the tenants by the Land Value Appraisal Com­mission - See paragraphs 11 to 12.

Expropriation - Topic 117

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

Expropriation - Topic 1155.1

Measure of compensation - Special inter­ests - Leaseholds - Right of renewal - The Province of Manitoba expropriated an office building in which MacKay and Settle were tenants - The tenants' lease was about to expire, but they had a right of renewal for a further five years at a rent to be agreed upon or determined by arbi­tration - The tenants moved to another building at a higher rent - The tenants claimed compensation for the difference between the rent paid at the new building and the amount which the tenants would have paid at the expropriated building if they had renewed the lease at the same rent - The Manitoba Court of Queen's Bench held that the tenants had no right to recover compensation for the rent differ­en­tial - See paragraphs 1 to 8.

Cases Noticed:

Frankel Steel Construction Ltd. v. Metro­politan Toronto (1966), 2 O.R. 817 (C.A.), affd. [1970] S.C.R. 726, folld. [para. 5].

Manitoba v. Christie, MacKay and Co. (1993), 87 Man.R.(2d) 285 (Q.B.), affd. (1994), 92 Man.R.(2d) 167; 61 W.A.C. 167 (C.A.), leave to appeal refused (1994), 177 N.R. 79; 100 Man.R.(2d) 80; 91 W.A.C. 80 (S.C.C.), folld. [para. 6].

Counsel:

Sidney Green, Q.C., for the tenant;

W. Glenn McFetridge, for the authority.

This motion was heard before Nurgitz, J., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the follow­ing judgment on December 23, 1997.