Manitoba v. Gillis Quarries Ltd., (1996) 110 Man.R.(2d) 229 (CA)

• Judge: Scott, C.J.M., Twaddle and Monnin, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: June 05, 1996
• Jurisdiction: Manitoba
• Citations: (1996), 110 Man.R.(2d) 229 (CA)

Man. v. Gillis Quarries Ltd. (1996), 110 Man.R.(2d) 229 (CA);

    118 W.A.C. 229

MLB headnote and full text

Her Majesty The Queen in Right of The Province of Manitoba (appellant/authority) v. Gillis Quarries Ltd. (respondent/owner)

(Suit No. AI 95-30-02399)

Indexed As: Manitoba v. Gillis Quarries Ltd.

Manitoba Court of Appeal

Scott, C.J.M., Twaddle and Monnin, JJ.A.

June 5, 1996.

Summary:

The Province expropriated 25 acres of land containing unique limestone deposits (Tyn­dall stone) to which the landowner had re­moval rights. A further small area now fell within the control area adjacent to the new highway. The landowner sought compensa­tion for the expropriated land and for injuri­ous affection to the land within the control area. The Land Value Appraisal Commission awarded $1,528,515.59 for the expropriated land containing quarriable stone, $4,136 for the land without such stone and rejected the injurious affection claim. The Province appealed. The landowner cross-appealed.

The Manitoba Court of Appeal allowed the appeal in part and dismissed the cross-ap­peal.

Expropriation - Topic 1159

Measure of compensation - Special inter­ests - Mineral rights - The Province ex­propriated 25 acres of land containing unique limestone deposits (Tyndall stone), which the landowner was in the business of quarrying - The Manitoba Court of Appeal stated that land containing mineral deposits was to be valued the same as any other land, being how much would a will­ing buyer, aware of the deposits, be pre­pared to pay to a willing seller for the land - The value of the land was not equal to the value of the mineral deposits - The court discussed the factors to be consid­ered in valuing compensation for such land - See paragraphs 8 to 22.

Expropriation - Topic 1207

Measure of compensation - Injurious affection or damage to unexpropriated portion - Invalid claims - Land was ex­propriated for a highway - Another small portion of the owner's land now fell within the highway control zone, limiting its use - The owner sought compensation for injurious affection respecting the unexpro­priated land within the control zone - The Manitoba Court of Appeal affirmed that s. 25(2) of the Expropriation Act and s. 16(2) of the Highways Protection Act defeated such a claim - See paragraphs 23 to 25.

Expropriation - Topic 1656

Measure of compensation - Interest - Rate of interest - Section 35(1) of the Expro­priation Act provided that compensation was to bear interest from the date of entry into possession by the expropriating au­thority until payment at the rate prescribed under the Queen's Bench Act - Section 35(1) had been amended in September 1993, resulting in a higher interest rate thereafter - The owner sought a retroactive application of the amendment - The Man­itoba Court of Appeal affirmed that the amended s. 35(1) did not apply retroac­tively - See paragraphs 27 to 29.

Statutes - Topic 6701

Operation and effect - Commencement, duration and repeal - Retrospective and retroactive enactments - General - [See Expropriation - Topic 1656 ].

Cases Noticed:

Pastoral Finance Association Ltd. v. Minister, [1914] A.C. 1083 (P.C.), refd to. [para. 11].

Federal District Commission v. Fran­ceschini et al. (1961), 31 D.L.R.(2d) 482 (Exch. Ct.), refd to. [para. 12].

Canada (National Capital Commission) v. McFarland (H.J.) Construction Co., [1974] S.C.R. 1088, refd to. [para. 13].

Canada (National Capital Commission) v. Colegate, [1974] S.C.R. 1096, refd to. [para. 13].

Fraser v. R., [1963] S.C.R. 455, refd to. [para. 14].

Kildonan Concrete Products Ltd. v. Winnipeg (City) (1974), 7 N.R. 444 (Man. C.A.), affd. (1975), 7 N.R. 443 (S.C.C.), refd to. [para. 14].

Kildonan Concrete Products Ltd. v. Winnipeg (City), [1974] 3 W.W.R. 722 (Man. Co. Ct.), refd to. [para. 16].

Uskiw v. Manitoba (1994), 95 Man.R.(2d) 277; 70 W.A.C. 277; 52 L.C.R. 246 (C.A.), refd to. [para. 24].

Mercury v. Manitoba (Minister of Government Services) (1996), 109 Man.R.(2d) 243 (Q.B.), refd to. [para. 28].

Statutes Noticed:

Expropriation Act, R.S.M. 1987, c. E-190, sect. 25(2) [para. 24]; sect. 35(1) [para. 27].

Highways Protection Act, R.S.M. 1987, c. H-50, sect. 16(2) [para. 24].

Counsel:

W.G. McFetridge, for the appellant;

J.B. Hughes, Q.C., C.C. Settle, Q.C., and P. Ginakes, for the respondent.

This appeal and cross-appeal were heard on April 11, 1996, before Scott, C.J.M., Twaddle and Monnin, JJ.A., of the Manitoba Court of Appeal.

On June 5, 1996, Twaddle, J.A., delivered the following judgment for the Court of Appeal.