Man. v. Russell Inns Ltd.,

• Jurisdiction: Manitoba
• Judge: Beard, Monnin and MacInnes, JJ.A.
• Neutral Citation: 2013 MBCA 46
• Citation: (2013), 291 Man.R.(2d) 244 (CA),2013 MBCA 46,361 DLR (4th) 581,291 Man R (2d) 244,(2013), 291 ManR(2d) 244 (CA),361 D.L.R. (4th) 581,291 ManR(2d) 244,291 Man.R.(2d) 244
• Date: 31 May 2013
• Court: Court of Appeal (Manitoba)

Man. v. Russell Inns Ltd. (2013), 291 Man.R.(2d) 244 (CA);

      570 W.A.C. 244

MLB headnote and full text

Temp. Cite: [2013] Man.R.(2d) TBEd. JN.013

Her Majesty The Queen in Right of the Province of Manitoba (applicant/respondent) v. Russell Inns Ltd. and 2323320 Manitoba Ltd. (respondents/appellants)

(AI 11-30-07604; 2013 MBCA 46)

Indexed As: Manitoba v. Russell Inns Ltd. et al.

Manitoba Court of Appeal

Beard, Monnin and MacInnes, JJ.A.

May 31, 2013.

Summary:

The province expropriated a portion of lands owned by Russell to widen a highway. Russell incurred appraisal costs respecting its claim for compensation for the negative effect on its businesses. The province's standard practice was to pay interim appraisal costs incurred by owners whose lands were expropriated, if they were reasonable. The province refused to pay costs it determined to be unreasonable. The parties sought direction from the Land Value Appraisal Commission as to whether the Commission had jurisdiction under the Expropriation Act to order the interim payment of appraisal costs or whether appraisal costs could be ordered paid only when the expropriation was settled or determined. The Commission held that it had jurisdiction and ordered the interim payment of appraisal costs on a "without prejudice basis". The province sought judicial review.

The Manitoba Court of Queen's Bench, in a judgment reported at (2011), 265 Man.R.(2d) 99, allowed the application and quashed the Commission's decision for want of jurisdiction. Russell appealed.

The Manitoba Court of Appeal allowed the appeal in part. The court held that the trial judge did not err in finding that there was no adequate alternative remedy to judicial review. However, the trial judge erred in applying the correctness standard of review. Applying the Dunsmuir factors, the standard of review respecting the Commission's decision that it had jurisdiction to make an interim order was reasonableness. The Commission's decision to order interim payment of the full appraiser costs on a without prejudice basis, subject to review for reasonableness after compensation issues were resolved, was unreasonable. Finally, the trial judge did not err in the costs award he made.

Administrative Law - Topic 2155

Natural justice - Administrative decisions or findings - Effect of failure of tribunal or official to give reasons for decisions (incl. sufficiency of reasons) - Parties to an expropriation sought direction from the Land Value Appraisal Commission as to whether the Commission had jurisdiction under the Expropriation Act to order the interim payment of appraisal costs or whether appraisal costs could be ordered paid only when the expropriation was settled or determined - The Commission ruled that it had jurisdiction - The Commission's reasons did not "contain any analysis to support or explain its decision" - The Manitoba Court of Appeal, reviewing the jurisdiction decision on the reasonableness standard of review (because trial judge mistakenly used correctness standard of review), discussed the effect on the review of the lack of reasons - The court stated that "if the decision of an administrative body is being reviewed on a standard of reasonableness and that body either gave no reasons or gave inadequate reasons, the reviewing court has an obligation to attempt to determine the reasonableness of the decision based on the available information. This could include the evidence, the record, the submissions before the administrative body, the transcript of the proceedings, if one is available, any relevant reasons given by that body in prior proceedings, the question being dealt with, any reasons that were given and the outcome" - See paragraphs 84 to 89.

Administrative Law - Topic 3202

Judicial review - General - Scope or standard of review - The Manitoba Court of Appeal stated that "the Supreme Court has significantly limited (if not abolished, for all practical purposes) the category of true questions of jurisdiction, leaving the review of a decision by an administrative entity interpreting its home statute or statutes closely connected with it to be conducted on the standard of review of reasonableness, unless the question raises a constitutional issue, is a question of general law that is both of central importance to the legal system as a whole and outside the adjudicator's specialized area of expertise or relates to the jurisdictional lines between two or more specialized tribunals" - See paragraph 76.

Administrative Law - Topic 3302

Judicial review - Bars - Alternate remedy - [See Administrative Law - Topic 7096 ].

Administrative Law - Topic 7096

Judicial review - Bars - Discretionary bars - Existence of convenient or adequate alternative remedy - The province expropriated lands owned by Russell - Russell incurred appraisal costs respecting its claim for compensation - The province's standard practice was to pay interim appraisal costs incurred by owners whose lands were expropriated, if they were reasonable - The province refused to pay costs it determined to be unreasonable - The parties sought direction from the Land Value Appraisal Commission as to whether the Commission had jurisdiction under the Expropriation Act to order the interim payment of appraisal costs or whether appraisal costs could be ordered paid only when the expropriation was settled or determined - The Commission held that it had jurisdiction and ordered the interim payment of appraisal costs on a "without prejudice basis" - The Manitoba Court of Appeal agreed with the trial judge that judicial review was not precluded by the existence of an appropriate alternative remedy - There was no final decision on compensation - The appeal under ss. 44(1) and (2) of the Act did not apply to decisions on jurisdiction - An appeal was not available under ss. 44(1) and (2) where there was no final determination on compensation - See paragraphs 16 to 23.

Expropriation - Topic 1323

Measure of compensation - Elements of compensation - Expert's fees (incl. appraisals and legal costs) - [See Expropriation - Topic 2336 ].

Expropriation - Topic 2207

Practice and procedure - Appeals - Standard or scope of review by courts of decisions of boards - The province expropriated lands owned by Russell - Russell incurred appraisal costs respecting its claim for compensation - The province's standard practice was to pay interim appraisal costs incurred by owners whose lands were expropriated, if they were reasonable - The province refused to pay costs it determined to be unreasonable - The parties sought direction from the Land Value Appraisal Commission as to whether the Commission had jurisdiction under the Expropriation Act to order the interim payment of appraisal costs or whether appraisal costs could be ordered paid only when the expropriation was settled or determined - The Commission held that it had jurisdiction and ordered the interim payment of the full appraisal costs claimed, on a "without prejudice basis", subject to a reasonableness review once the compensation issues were resolved - The trial judge, applying the correctness standard of review, held that the board had no jurisdiction to order the interim payment - On appeal, the issue was whether the correct standard of review of the Commission's decision was correctness (question of true jurisdiction), or whether the reasonableness standard of review applied - The Manitoba Court of Appeal held that the standard of review was reasonableness - There was no question of "true jurisdiction" - The Commission was interpreting a costs/expenses provision in its home statute and whether the Commission could order interim payment of those costs related to the "how and why" of the exercise of a statutory power - There was no question of general law of central importance to the legal system, outside the Commission's expertise - See paragraphs 30 to 78.

Expropriation - Topic 2320

Practice and procedure - Costs - General - The Manitoba Court of Appeal stated that the principles applicable to the determination of costs in expropriation and incidental proceedings were "where an administrative tribunal has determined the compensation payable to the owner, the owner is entitled to 'reasonable appraisal, legal and other costs that are reasonably incurred' in accordance with ss. 15(6) and (7) [Expropriation Act]; if there is an appeal of the compensation decision, that appeal is governed by s. 44 of the Act, and costs on the appeal are to be determined in accordance with s. 44(3), which gives the court the discretion to award costs in accordance with s. 15(6) in some circumstances - that is, where the owner's appeal is successful or the authority's appeal is unsuccessful; if proceedings are taken in court that are incidental but necessary to the expropriation, costs are determined in accordance with the usual court rules for costs, not in accordance with s. 15(6); if the court awards costs as part of that incidental litigation that are less than his actual legal expenses, the owner can ask the administrative tribunal to include in his compensation the difference between his actual expenses and the costs awarded by the court; and in determining whether to grant that application, the administrative tribunal would be guided by the principles applicable to expropriation proceedings and the applicable law, including the presumption of full indemnification, who had initiated the incidental proceedings, the nature of those proceedings and whether they were necessary, and the requirement in s. 15(6) that the costs and expenses be both reasonable and reasonably incurred." - See paragraph 179.

Expropriation - Topic 2328

Practice and procedure - Costs - Solicitor and client costs - The province expropriated lands owned by Russell - The parties sought direction from the Land Value Appraisal Commission as to whether the Commission had jurisdiction under the Expropriation Act to order the interim payment of Russell's claimed appraisal costs or whether appraisal costs could be ordered paid only when the expropriation was settled or determined - The Commission held that it had jurisdiction and ordered the interim payment of full appraisal costs claimed on a "without prejudice basis", subject to a reasonableness review when the compensation issues were resolved - The trial judge, applying the correctness standard of judicial review, quashed the interim order for want of jurisdiction - The trial judge denied Russell's request for solicitor-client costs and ordered that each party bear their own costs - The Manitoba Court of Appeal affirmed the quashing of the interim order, but on the basis that the correct standard of review was reasonableness - The trial judge did not err in his costs award - See paragraphs 157 to 187.

Expropriation - Topic 2336

Practice and procedure - Costs - Cost of appraisal - The province expropriated lands owned by Russell - Russell incurred appraisal costs respecting its claim for compensation - The province's standard practice was to pay interim appraisal costs incurred by owners whose lands were expropriated, if they were reasonable - The province refused to pay costs it determined to be unreasonable - The parties sought direction from the Land Value Appraisal Commission as to whether the Commission had jurisdiction under the Expropriation Act to order the interim payment of appraisal costs or whether appraisal costs could be ordered paid only when the expropriation was settled or determined - The Commission held that it had jurisdiction and ordered the interim payment of full appraisal costs claimed on a "without prejudice basis", subject to a reasonableness review when the compensation issues were resolved - Section 15(6) authorized the Commission to order the payment of reasonable appraisal, legal and other costs incurred by the owner for the purpose of determining the compensation payable and s. 15(7) authorized the determination of those costs once the amount of compensation was settled - Neither subsection specifically stated when that payment was to be made - The Manitoba Court of Appeal quashed the Commission's decision as unreasonable - Interim orders, while consistent with the goal of early compensation of owners, would complicate the expropriation process through delay in finally resolving the matter, increased costs and re-argument of interim decisions once compensation was finally determined - The court stated that "the scheme of the Act, the placement of ss. 15(6) and (7) within the Act, and the wording of the Act do not support an interpretation that the [Commission] has the authority to make any interim orders, to determine the reasonableness of costs on an interim basis, or to order that the authority pay anything other than reasonable costs reasonably incurred" - See paragraphs 28 to 156.

Cases Noticed:

Dr. Q., Re, [2003] 1 S.C.R. 226; 302 N.R. 34; 179 B.C.A.C. 170; 295 W.A.C. 170; 2003 SCC 19, refd to. [para. 12].

Guinn v. Manitoba (2009), 245 Man.R.(2d) 57; 466 W.A.C. 57; 2009 MBCA 82, refd to. [para. 12].

Turnbull et al. v. Canadian Institute of Actuaries et al. (1995), 107 Man.R.(2d) 63; 109 W.A.C. 63 (C.A.), refd to. [para. 16].

Winnipeg (City Assessor) v. Canadian National Railway Co. (1998), 134 Man.R.(2d) 122; 193 W.A.C. 122 (C.A.), refd to. [para. 16].

Rebel Holdings Ltd. et al. v. Division Scolaire Franco-Manitobaine (2008), 228 Man.R.(2d) 157; 427 W.A.C. 157; 2008 MBCA 65, refd to. [para. 30].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 31].

Nolan v. Kerry (Canada) Inc. - see Nolan et al. v. Superintendent of Financial Services (Ont.) et al.

Nolan et al. v. Superintendent of Financial Services (Ont.) et al., [2009] 2 S.C.R. 678; 391 N.R. 234; 253 O.A.C. 256; 2009 SCC 39, refd to. [para. 31].

Alliance Pipeline Ltd. v. Smith, [2011] 1 S.C.R. 160; 412 N.R. 66; 2011 SCC 7, refd to. [para. 31].

Khosa v. Canada (Minister of Citizenship and Immigration), [2009] 1 S.C.R. 339; 385 N.R. 206; 2009 SCC 12, refd to. [para. 37].

Canada (Attorney General) v. Northrop Grumman Overseas Services Corp. et al., [2009] 3 S.C.R. 309; 395 N.R. 78; 2009 SCC 50, refd to. [para. 37].

Celgene Corp. v. Canada (Attorney General), [2011] 1 S.C.R. 3; 410 N.R. 127; 2011 SCC 1, refd to. [para. 37].

Canada (Attorney General) v. Mowat, [2011] 3 S.C.R. 471; 422 N.R. 248; 2011 SCC 53, refd to. [para. 37].

Manitoba Association of Health Care Professionals v. Nor-Man Regional Health Authority Inc., [2011] 3 S.C.R. 616; 423 N.R. 95; 275 Man.R.(2d) 16; 538 W.A.C. 16; 2011 SCC 59, refd to. [para. 37].

Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board) et al., [2011] 3 S.C.R. 708; 424 N.R. 220; 317 Nfld. & P.E.I.R. 340; 986 A.P.R. 340; 2011 SCC 62, refd to. [para. 37].

Alberta Teachers' Association v. Information and Privacy Commissioner (Alta.) et al., [2011] 3 S.C.R. 654; 424 N.R. 70; 519 A.R. 1; 539 W.A.C. 1; 2011 SCC 61, refd to. [para. 37].

Toronto Hydro-Electric System Ltd. v. Ontario Energy Board (2010), 261 O.A.C. 306; 99 O.R.(3d) 481; 2010 ONCA 284, refd to. [para. 50].

Sciberras v. Workers' Compensation Board (Man.) (2011), 262 Man.R.(2d) 277; 507 W.A.C. 277; 2011 MBCA 30, refd to. [para. 50].

Toronto (City) v. Canadian Union of Public Employees, Local 79 et al., [2003] 3 S.C.R. 77; 311 N.R. 201; 179 O.A.C. 291; 2003 SCC 63, refd to. [para. 59].

Social Services Administration Board (Parry Sound District) v. Ontario Public Service Employees Union, Local 324 et al., [2003] 2 S.C.R. 157; 308 N.R. 271; 177 O.A.C. 235; 2003 SCC 42, refd to. [para. 59].

2127423 Manitoba Ltd. v. Unicity Taxi Ltd. et al. (2012), 280 Man.R.(2d) 292; 548 W.A.C. 292; 2012 MBCA 75, refd to. [para. 87].

Atkins v. Manitoba; Reimer v. Manitoba (2002), 78 L.C.R. 155 (L.V.A.C.), refd to. [para. 92].

Williams v. Nova Scotia (Attorney General) (1995), 144 N.S.R.(2d) 19; 416 A.P.R. 19 (C.A.), dist. [para. 96].

Nova Scotia (Attorney General) v. Powell (L.E.) Property Ltd. et al. (1995), 144 N.S.R.(2d) 93; 416 A.P.R. 93 (C.A.), dist. [para. 96].

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, refd to. [para. 109].

Toronto Area Transit Operating Authority v. Dell Holdings Ltd., [1997] 1 S.C.R. 32; 206 N.R. 321; 97 O.A.C. 81, refd to. [para. 111].

Harbour Brick Co. et al. v. Canada (1987), 17 F.T.R. 255 (T.D.), refd to. [para. 140].

R. v. Caron (G.), [2011] 1 S.C.R. 78; 411 N.R. 89; 499 A.R. 309; 514 W.A.C. 309; 4 W.W.R. 1; 2011 SCC 5, refd to. [para. 142].

Little Sisters Book and Art Emporium v. Minister of National Revenue, [2007] 1 S.C.R. 38; 356 N.R. 83; 235 B.C.A.C. 1; 388 W.A.C. 1; 2007 SCC 2, refd to. [para. 159].

Elsom v. Elsom, [1989] 1 S.C.R. 1367; 96 N.R. 165, refd to. [para. 160].

Homestead Properties (Canada) Ltd. v. Sekhri et al. (2007), 214 Man.R.(2d) 148; 395 W.A.C. 148; 2007 MBCA 61, refd to. [para. 160].

Towers Ltd. v. Quinton's Cleaners Ltd. et al. (2009), 245 Man.R.(2d) 70; 466 W.A.C. 70; 2009 MBCA 81, refd to. [para. 160].

Mahone Bay (Town) v. Lohnes, Younis and Lohnes' Market Ltd. (1983), 59 N.S.R.(2d) 68; 125 A.P.R. 68 (T.D.), refd to. [para. 173].

McKean v. Ontario (Minister of Transportation) (2008), 94 L.C.R. 185, refd to. [para. 174].

Fouillard v. Ellice (Rural Municipality) (2007), 220 Man.R.(2d) 113; 407 W.A.C. 113; 2007 MBCA 108, refd to. [para. 175].

Statutes Noticed:

Expropriation Act, R.S.M. 1987, c. E-190; C.C.S.M., c. E-190, sect. 15(1), sect. 15(2), sect. 15(3), sect. 15(6), sect. 15(7), sect. 44(1), sect. 44(2), sect. 44(3) [para. 11].

Authors and Works Noticed:

Brown, Donald J.M., and Evans, John M., Judicial Review of Administrative Action in Canada (2012 Looseleaf), vol. 1, para. 3:2100 [para. 16].

Coates, John A., and Waqué, Stephen F., New Law of Expropriation (1986), vol. 2, pp. 28-74, 28-75, 28-82, 28-83 [para. 105].

Macaulay, Robert W., and Sprague, James L.H., Practice and Procedure Before Administrative Tribunals (2004 Looseleaf), vol. 3, pp. 28-42, footnote 73.14 [para. 81]; 28-46.20 [para. 12]; 28-46.64, 28-46-66 to 68 [para. 51]; 28-46.80 [para. 60].

Manitoba, Hansard, Legislative Assembly Debates and Proceedings (June 29, 1970), 29th Leg., 2nd Sess., vol. 42, No. 135, p. 3423 [para. 121].

Manitoba, Hansard, Legislative Assembly Debates and Proceedings (July 17, 1970), 29th Leg., 2nd Sess., vol. 42, No. 152, p. 3852 [para. 122].

Manitoba, Hansard, Legislative Assembly Debates and Proceedings (April 28, 1993), 35th Leg., 4th Sess., vol. 51, generally [para. 125].

Ontario Law Reform Commission, Report of the Ontario Law Reform Commission on the Basis for Compensation on Expropriation (1967), generally [para. 112].

Rogers, Ian MacF., New Expropriation Acts Reviewed (1964), 7 Can. Bar J. 29, generally [para. 117].

Sullivan, Ruth, Sullivan on the Construction of Statutes (5th Ed. 2008), generally [para. 109].

Todd, Eric C.E., The Law of Expropriation in Canada (2nd Ed. 1992), pp. 1, 2, 25, 26 [para. 111].

Counsel:

J.A. Mercury, for the appellants;

W.G. McFetridge, for the respondent.

This appeal was heard on November 29, 2011, before Beard, Monnin and MacInnes, JJ.A., of the Manitoba Court of Appeal.

On May 31, 2013, Beard, J.A., delivered the following judgment for the Court of Appeal.