Manitoba v. Paletta, (1985) 39 Man.R.(2d) 65 (CA)

• Court: Court of Appeal (Manitoba)
• Case Date: January 15, 1985
• Jurisdiction: Manitoba
• Citations: (1985), 39 Man.R.(2d) 65 (CA)

Man. v. Paletta (1985), 39 Man.R.(2d) 65 (CA)

MLB headnote and full text

Her Majesty the Queen in Right of the Province of Manitoba v. Salvatore Paletta

(Suit No. 386/84)

Indexed As: Manitoba v. Paletta

Manitoba Court of Appeal

Monnin, C.J.M., Hall, J.A., and Wilson, J.(ad hoc)

February 8, 1985.

Summary:

The Crown expropriated certain lands and premises belonging to Paletta. A fire occurred after the effective date of the expropriation and after title had vested in the Crown but while Paletta remained in possession. Paletta received $9,137.80 from his insurer respecting the fire. Paletta brought an action against the Crown for compensation for the expropriation. The Crown applied for an order under s. 40(1) of the Law of Property Act that the $9,137.80 in insurance proceeds be deducted from the compensation payable to Paletta.

The Manitoba Court of Queen's Bench, in a decision reported 30 Man.R.(2d) 234, allowed the Crown's application and held that the $9,137.80 should be deducted. Paletta appealed.

The Manitoba Court of Appeal allowed the appeal, holding that the application of the Crown to have the insurance proceeds deducted from the compensation payable should be dismissed and the $9,137.80 representing the insurance proceeds be paid to Paletta by the Crown.

Expropriation - Topic 1483

Compensation - Measure of - Deductions - Insurance proceeds - Under the Expropriation Act, s. 13(3), and the Law of Property Act, s. 40(1), an expropriating authority, where an expropriated property burned, could apply for an order governing the application of insurance money - S. 40(1) provided that the court "may" direct the monies be applied, inter alia, on the purchase and sale agreement or on restoration - The Manitoba Court of Appeal held that under s. 40(1) the court could order that the insurance proceeds be used for restoration or deducted from expropriation compensation or the court could dismiss the authority's application, which would allow the property owner to keep the insurance proceeds and be fully compensated too - See paragraph 9.

Expropriation - Topic 1483

Compensation - Measure of - Deductions - Insurance proceeds - A fire damaged property after it was expropriated by the Crown but before the owner gave up possession - The owner collected $9,137.80 from his insurer - The Crown obtained an order under s. 40(1) of the Law of Property Act directing that the insurance monies be deducted from the compensation payable for the expropriation - The Manitoba Court of Appeal, however, held that the discretion of the court under s. 40(1) should have been exercised in favour of not deducting the $9,137.80 of insurance proceeds from the compensation payable.

Cases Noticed:

Drache v. City of Winnipeg (1970), 75 W.W.R.(N.S.) 317 (Man. C.A.), affirming 72 W.W.R.(N.S.) 379 (Man. Q.B.), folld. [para. 8].

Statutes Noticed:

Expropriation Act, S.M. 1970, c. 78; C.C.S.M. c. E-190, sect. 13(3).

Law of Property Act, R.S.M. 1970, c. L-90; C.C.S.M. c. L-90, sect. 40(1).

Counsel:

M.J. Mercury, Q.C., for Paletta;

J.D. Brett, for Manitoba.

This appeal was heard on January 15, 1985, before Monnin, C.J.M., Hall, J.A., and Wilson, J. (ad hoc), of the Manitoba Court of Appeal. The following decision of the Court of Appeal was delivered by Hall, J.A., on February 8, 1985: