Mercury v. Manitoba (Minister of Government Services), (1998) 127 Man.R.(2d) 158 (QB)

• Judge: Mykle, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: April 24, 1998
• Jurisdiction: Manitoba
• Citations: (1998), 127 Man.R.(2d) 158 (QB)

Mercury v. Man. (1998), 127 Man.R.(2d) 158 (QB)

MLB headnote and full text

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

Michael John Mercury (owner) v. Her Majesty The Queen in Right of the Province of Manitoba (authority)

(CI 89-01-42647)

Indexed As: Mercury v. Manitoba (Minister of Government Services)

Manitoba Court of Queen's Bench

Winnipeg Centre

Mykle, J.

April 24, 1998.

Summary:

In 1983, Manitoba expropriated 2.5 vacant lots (15,045 sq. ft.) being used as a parking lot. The land was zoned for commercial and residential use. The owner's appraiser used a modified land residual approach to find multi-family residential development and the highest and best use. Based on that use, the appraiser valued the land at $40/square foot ($600,000). The province's appraiser deter­mined that the property's highest and best use was its current use (parking lot) and that its value was $25/square foot ($375,000).

The Manitoba Court of Queen's Bench accepted the owner's appraisal and fixed compensation at $600,000 plus statutory interest. In a subsequent decision (109 Man.R.(2d) 243), the court determined the rate of interest. The province appealed the compensation award. The owner cross-appealed the interest award.

The Manitoba Court of Appeal, in a deci­sion reported, 118 Man.R.(2d) 53; 149 W.A.C. 53, allowed the compensation appeal and dismissed the interest cross-appeal. The court held that the trial judge erred in ac­cepting the owner's appraisal. The modified land residual approach was inap­propriate, therefore, the highest and best use and land value was overstated. The court substituted compensation of $375,000, as appraised by the province's appraisal. The court remitted the matter to the trial judge for a determina­tion of costs.

The Manitoba Court of Queen's Bench awarded the owner costs.

Expropriation - Topic 2339

Practice and procedure - Costs - Effect of offers to settle - Manitoba expropriated the owner's property - The owner's appraiser valued the land at $600,000 - The province's appraiser valued the prop­erty at $375,000 - Manitoba offered to settle for $450,000 - The trial judge accepted the owner's appraisal and fixed compensation at $600,000 plus statutory interest - Manitoba successfully appealed and the value was set at $375,000 - The appellate court remitted the matter of costs to the trial judge - The Manitoba Court of Queen's Bench held that the owner was entitled to party and party cost - The court stated that despite the offer to settle, the position taken by the owner at trial was reasonable based on the evidence available to him and the case he presented was legitimate.

Statutes Noticed:

Expropriation Act, R.S.M. 1987, c. E-190; C.C.S.M., c. E-190, sect. 43(2) [para. 5].

Counsel:

R.A.L. Nugent, for the owner;

W.G. McFetridge, for the authority.

This matter was heard by Mykle, J., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the following decision on April 24, 1998.