Nova Scotia v. Johnson, (2005) 234 N.S.R.(2d) 260 (CA)

• Judge: Roscoe, Oland, and Hamilton, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: June 24, 2005
• Jurisdiction: Nova Scotia
• Citations: (2005), 234 N.S.R.(2d) 260 (CA);2005 NSCA 99

N.S. v. Johnson (2005), 234 N.S.R.(2d) 260 (CA);

    745 A.P.R. 260

MLB headnote and full text

Temp. Cite: [2005] N.S.R.(2d) TBEd. JN.054

Her Majesty the Queen in Right of the Province of Nova Scotia (appellant) v. George Johnson and Carolyn Johnson (respondents)

(CA 217598; 2005 NSCA 99)

Indexed As: Nova Scotia v. Johnson

Nova Scotia Court of Appeal

Roscoe, Oland, and Hamilton, JJ.A.

June 24, 2005.

Summary:

The plaintiffs were blueberry producers. The Province of Nova Scotia expropriated four parcels of their land for road construction. The plaintiffs claimed compensation for the lands expropriated, business losses, and injurious affection. The Nova Scotia Utility Review Board set the total compensation at over $340,000. The Province appealed, asking that the compensation be varied to less than $70,000.

The Nova Scotia Court of Appeal allowed the appeal in part.

Damages - Topic 1084

Mitigation - Evidence and proof - Burden of proof - The plaintiffs were blueberry producers - The Province of Nova Scotia expropriated their lands - The Nova Scotia Utility Board awarded compensation for loss of access to certain unexpropriated land, in the amount of unchallenged costs estimates for the construction of a crossing over a brook - The Province appealed - It submitted, inter alia, that no award should have been made because the plaintiffs failed to show that they could no longer access a woods road belonging to a neighbouring landowner - Alternatively, they had not shown any effort to secure any legal right or agreement to continue using that road (i.e., lack of mitigation) - The Nova Scotia Court of Appeal rejected the submission - Once the plaintiffs had made out a prima facie case, the burden of proof in regard to mitigation was not on them but on the expropriating authority - See paragraphs 124 to 130.

Expropriation - Topic 1038

Measure of compensation - Methods of valuation - Market value - The plaintiffs were blueberry producers - The Province of Nova Scotia expropriated their lands - In determining compensation, the Nova Scotia Utility Board accepted the values attributed to the bare land and to blueberry potential by Ryle, the plaintiffs' expert - The Province appealed the compensation award - The Nova Scotia Court of Appeal stated that "compensation based upon the value of constituent elements, which in the aggregate amount to a value to the owner, is not how compensation is to be determined ... However while the approach put forward by Mr. Ryle included constituent or component elements, the evidence simply does not support the contention that his assessment relied on the concept of 'value to the owner.' ... nothing in the [Expropriation] Act confined the Board to a consideration of real estate appraisals only, nor to appraisals using the direct comparison approach only, in determining the market value of expropriated land. Thus it is open to the Board to accept evidence or methodologies that, in the particular circumstances of the case then before it, are reliable or appropriate towards establishing market value, provided they are directed to the definition of that term and provided they have not been found to be incorrect, as has the value to the owner approach. A component value approach in determining the market value of land is not, in and of itself, a flawed assessment." - See paragraphs 73 and 74.

Expropriation - Topic 1204

Measure of compensation - Injurious affection or damage to unexpropriated portion - Value of severed land - George and Carolyn Johnson were blueberry producers - The Province of Nova Scotia expropriated four parcels of their land for construction of the Cobequid Pass - The Nova Scotia Utility Board found that an existing four acre blueberry field within the remaining lands south of one expropriated parcel had lost its value - Mr. Johnson had claimed that a blueberry field should be at least eight acres before it was economically feasible to harvest, but the building of the Cobequid Pass and the application of salt on that highway had made expansion of the field impossible - The Board awarded $3,000 per acre for the existing blueberry field - The Nova Scotia Court of Appeal held that no compensation should have been awarded for this field - There was no evidence that the use of salt or any other activity had damaged the lands - Mr. Johnson had continued to harvest that field - See paragraphs 121 and 122.

Expropriation - Topic 1204

Measure of compensation - Injurious affection or damage to unexpropriated portion - Value of severed land - The Nova Scotia Court of Appeal held that the Nova Scotia Utility Board erred in awarding the plaintiffs compensation for severance of access to a woodlot where the expropriation did not sever any existing access - Further, the Board erred in the compensation that it did award for the abandonment of the 14 acre woodlot by including an amount for the bare land in addition to one for timber - Since the plaintiffs still owned that land, even if they lost the value of the timber which could no longer be harvested, the plaintiffs could not have lost the value of the land itself - See paragraphs 131 to 136.

Expropriation - Topic 1207

Measure of compensation - Injurious affection or damage to unexpropriated portion - Invalid claims - The Province of Nova Scotia expropriated the plaintiffs' lands - The plaintiffs claimed compensation for (a) "compliance costs" in the form of their time and expenses in preparing and presenting their claim, and (b) pension and bridging costs - The Nova Scotia Court of Appeal noted that while a person was to be compensated when land was taken, the basis for each claim had to be identified and grounded in a statutory provision - The Expropriation Act did not speak of "compliance costs" - The court held that these claims were not costs, injurious affection or disturbance damages - The most that the plaintiffs could recover was an amount for their time in attending the hearing before the Board - See paragraphs 179 to 208.

Expropriation - Topic 1218

Measure of compensation - Injurious affection or damage to unexpropriated portion - Evidence and proof - [See Damages - Topic 1084 ].

Expropriation - Topic 1305

Measure of compensation - Elements of compensation - Disturbance and inconvenience - The Province of Nova Scotia expropriated four parcels of the plaintiffs' lands for road construction - The Nova Scotia Utility Board awarded the plaintiffs compensation for noise disturbance - The Nova Scotia Court of Appeal held that having ordered $7,000 compensation for devaluation, the Board's award of $46,375 to cover the cost of remediation amounted to double compensation - The court decreased the figure for remediation accordingly - See paragraphs 164 to 176.

Expropriation - Topic 2207

Practice and procedure - Appeals - Standard or scope of review by courts of decisions of boards - The Province of Nova Scotia expropriated lands belonging to the respondents - The Nova Scotia Utility Review Board determined the amount of compensation payable to them - The Province appealed - The Nova Scotia Court of Appeal discussed the standard of review applicable to the decision - The court held that the standard of review to be applied to questions of law, such as any entitlement for compensation for owner's time and for pension loss, was correctness - For questions of mixed law and fact, such as matters related to compensation for market value and injurious affection, the standard was patent unreasonableness - For findings of fact, the standard was patent unreasonableness - See paragraphs 33 to 47.

Expropriation - Topic 2323

Practice and procedure - Costs - Owner's time - [See Expropriation - Topic 1207 ].

Expropriation - Topic 3003

Compensation awards - Particular awards - Farmland - The plaintiffs were blueberry producers - The Province of Nova Scotia expropriated four parcels of their land for road construction - Parcel C had been used as pastureland when taken - The plaintiffs argued that although largely woodland, parcels A, B and D had potential for future blueberry development - The Nova Scotia Utility Board determined the amount of compensation payable for the expropriated lands - The Province appealed - The Nova Scotia Court of Appeal reviewed the expert evidence that had been before the Board and held that the Board's valuation of parcels A, B and D was patently unreasonable - See paragraphs 60 to 108.

Expropriation - Topic 3012

Compensation awards - Particular awards - Woodland - [See Expropriation - Topic 3003 ].

Expropriation - Topic 3053

Compensation awards - Particular awards - Disturbance costs - [See Expropriation - Topic 1207 and Expropriation - Topic 1305 ].

Expropriation - Topic 3100

Compensation awards - Particular awards - Injurious affection - [See Expropriation - Topic 1207 ].

Expropriation - Topic 3102

Compensation awards - Particular awards - Injurious affection - Severance - [See second Expropriation - Topic 1204 ].

Expropriation - Topic 3102

Compensation awards - Particular awards - Injurious affection - Severance - The plaintiffs were blueberry producers - The Province of Nova Scotia expropriated four parcels of their land for road construction - The plaintiffs claimed compensation for, inter alia, the additional costs of transporting their equipment resulting from the closure of a road that was severed by the new road - The Nova Scotia Court of Appeal held that the plaintiffs were not entitled to compensation for these transportation costs - The severed road was a public road and the plaintiffs did not own the lands on either side of it - See paragraphs 137 to 147.

Expropriation - Topic 3103

Compensation awards - Particular awards - Injurious affection - Business losses - The plaintiffs were blueberry producers - The Province of Nova Scotia expropriated four parcels of their land - The plaintiffs claimed compensation for, inter alia, business losses or damages related to alfalfa leafcutter bees - They claimed that before the expropriation, they believed that they could cut their pollination costs by using leafcutter bees and that they were committed to using those bees and to producing them for sale to other farmers - This was harmed by the expropriation of a parcel that could grow the required forage - The Nova Scotia Court of Appeal held that there was no basis for this claim under the Expropriation Act - The plaintiffs did not have a leafcutter bee business at the time of expropriation - Therefore they had no claim for "business loss" under s. 29 of the Act - When the parcel was expropriated, the plaintiffs had not used leafcutter bees exclusively nor did they own any leafcutter bees nor had they produced any such bees for their own use - Therefore, they had no claim under s. 3(1)(h)(i)(B) for "business damages" - See paragraphs 148 to 163.

Cases Noticed:

Nova Scotia (Attorney General) v. Williams (1996), 152 N.S.R.(2d) 291; 442 A.P.R. 291 (C.A.), refd to. [para. 34].

Halifax Employers Association v. International Longshoremen's Association, Local 269 (2004), 226 N.S.R.(2d) 159; 714 A.P.R. 159 (C.A.), refd to. [para. 36].

Creager v. Provincial Dental Board (N.S.) (2005), 230 N.S.R.(2d) 48; 729 A.P.R. 48 (C.A.), refd to. [para. 37].

Voice Construction Ltd. v. Construction & General Workers' Union, Local 92, [2004] 1 S.C.R. 609; 318 N.R. 332; 346 A.R. 201; 320 W.A.C. 201, refd to. [para. 38].

Retired Judges Case - see Canadian Union of Public Employees et al. v. Ontario (Minister of Labour).

Canadian Union of Public Employees et al. v. Ontario (Minister of Labour) (2003), 304 N.R. 76; 173 O.A.C. 386; 226 D.L.R.(4th) 193; 2003 SCC 29, refd to. [para. 38].

Moreau-Bérubé v. New Brunswick (Judicial Council) - see Conseil de la magistrature (N.-B.) v. Moreau-Bérubé.

Conseil de la magistrature (N.-B.) v. Moreau-Bérubé, [2002] 1 S.C.R. 249; 281 N.R. 201; 245 N.B.R.(2d) 201; 636 A.P.R. 201; 2002 SCC 11, refd to. [para. 40].

Dr. Q., Re, [2003] 1 S.C.R. 226; 302 N.R. 34; 179 B.C.A.C. 170; 295 W.A.C. 170, refd to. [para. 40].

Minister of National Revenue (Customs and Excise) v. Mattel Canada Inc., [2001] 2 S.C.R. 100; 270 N.R. 153, refd to. [para. 41].

Ryan v. Law Society of New Brunswick, [2003] 1 S.C.R. 247; 302 N.R. 1; 257 N.B.R.(2d) 207; 674 A.P.R. 207, refd to. [para. 47].

Toronto Area Transit Operating Authority v. Dell Holdings Ltd., [1997] 1 S.C.R. 32; 206 N.R. 321; 97 O.A.C. 81; 142 D.L.R.(4th) 206, refd to. [para. 51].

Bank of Nova Scotia et al. v. Nova Scotia et al. (1978), 22 N.S.R.(2d) 568; 31 A.P.R. 568 (C.A.), refd to. [para. 73].

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.), refd to. [para. 73].

R. v. Abbey (1982), 43 N.R. 30; 29 C.R.(3d) 193 (S.C.C.), refd to. [para. 83].

R. v. Lavallee, [1990] 1 S.C.R. 852; 108 N.R. 321; 67 Man.R.(2d) 1, refd to. [para. 83].

Saint John (City) v. Irving Oil Co., [1966] S.C.R. 581, refd to. [para. 85].

Ferguson et al. v. Ranger Oil Ltd., [1997] 3 W.W.R. 487; 193 A.R. 210; 135 W.A.C. 210; 47 Alta. L.R.(3d) 346 (C.A.), refd to. [para. 86].

Henderson v. Minister of Tourism (N.B.) (1981), 43 N.B.R.(2d) 360; 113 A.P.R. 360; 23 L.C.R. 30 (Property Comp. Bd.), affd. (1981), 43 N.B.R.(2d) 360; 113 A.P.R. 360 (C.A.), refd to. [para. 96].

Tekmin Inc. v. Canada (1995), 190 N.R. 223; 59 L.C.R. 31 (F.C.A.), refd to. [para. 96].

Ives v. Manitoba, [1970] S.C.R. 465, refd to. [para. 96].

Grand Trunk Railway Co. v. Coupal (1898), 28 S.C.R. 531, refd to. [para. 98].

Fairman v. Montreal (City) (1901), 31 S.C.R. 210, refd to. [para. 98].

Janiak v. Ippolito, [1985] 1 S.C.R. 146; 57 N.R. 241; 9 O.A.C. 1, refd to. [para. 129].

R. v. Loiselle (1962), 35 D.L.R.(2d) 274 (S.C.C.), dist. [para. 142].

Windsor (City) v. Larsen et al. (1980), 114 D.L.R.(3d) 477 (Ont. Div. Ct.), dist. [para. 142].

St. Pierre v. Ontario (Minister of Transportation and Communications), [1987] 1 S.C.R. 906; 75 N.R. 291; 22 O.A.C. 63, refd to. [para. 146].

Edwards v. Minister of Transport, [1964] 2 Q.B. 134 (C.A.), refd to. [para. 167].

Sisters of Charity of Rockingham v. R., [1922] 2 A.C. 315; 67 D.L.R. 209 (P.C.), refd to. [para. 169].

Hammerling et al. v. Nova Scotia (1978), 27 N.S.R.(2d) 655; 41 A.P.R. 655; 6 R.P.R. 20 (E.C.B.), refd to. [para. 172].

Smith v. R. (No. 2) (1984), 31 L.C.R. 172 (Alta. L.C.B.), refd to. [para. 183].

Schwindt v. Minister of Transportation (No. 2) (1983), 27 L.C.R. 205 (Alta. L.C.B.), refd to. [para. 183].

Lorenz v. Lloydminster (City) (No. 2) (1982), 26 L.C.R. 326 (Alta. L.C.B.), refd to. [para. 183].

Ravvin Holdings Ltd. v. Calgary (City) (1990), 44 L.C.R. 198 (Alta. L.C.B.), revd. (1992), 48 L.C.R. 81 (Alta. C.A.), consd. [para. 184].

Glenlea 75 Servicecentre Ltd. v. Manitoba (Department of Highways and Transportation) (No. 2) (1993), 52 L.C.R. 70 (Man. L.V.A.C.), refd to. [para. 185].

Gulak et al. v. Winnipeg (City) (1983), 29 L.C.R. 261 (Man. Land Value Appr. Com.), refd to. [para. 185].

Shell Canada Ltd. v. Alberta (Minister of Transportation and Utilities) (1991), 46 L.C.R. 133 (Alta. L.C.B.), refd to. [para. 186].

Tomshak v. Alberta (Minister of Transportation) (2003), 81 L.C.R. 66 (Alta. L.C.B.), refd to. [para. 186].

Reon Management Services Ltd. v. British Columbia (2001), 72 L.C.R. 257 (B.C.E.C.B.), refd to. [para. 187].

Stewart v. Winnipeg (City) (1998), 65 L.C.R. 270 (Man. L.V.A.C.), refd to. [para. 188].

Park Projects Ltd. v. Halifax (City) (1982), 54 N.S.R.(2d) 116; 112 A.P.R. 116; 25 L.C.R. 193 (C.A.), folld. [para. 189].

Kowalik et al. v. Ministry of Transportation and Communications (1986), 36 L.C.R. 382 (Ont. Mun. Bd.), refd to. [para. 194].

Reardon et al. v. Dartmouth (City) (1981), 46 N.S.R.(2d) 568; 89 A.P.R. 568 (E.C.B.), refd to. [para. 196].

PANS Social and Recreation Club of Halifax v. Dartmouth (City) (1981), 49 N.S.R.(2d) 407; 96 A.P.R. 407 (E.C.B.), refd to. [para. 196].

McLeod v. New Brunswick, [2000] N.B.R.(2d) (Supp.) No. 13 (T.D.), refd to. [para. 198].

Moffett (Stephen) Ltd. v. New Brunswick (Minister of Transportation), [2004] N.B.R.(2d) (Supp.) No. 6; 81 L.C.R. 161 (T.D.), refd to. [para. 200].

Statutes Noticed:

Expropriation Act, R.S.N.S. 1989, c. 156, sect. 26(b) [para. 195].

Authors and Works Noticed:

Canada, Appraisal Institute, The Appraisal of Real Estate (Canadian Ed. 1992), pp. 292, 293 [para. 59].

Paciocco, David M., and Stuesser, Lee, The Law of Evidence (3rd Ed. 2002), c. 6, 7 [para. 82].

Todd, Eric C.E., The Law of Expropriation and Compensation in Canada (2nd Ed. 1992), pp. 35 [para. 49]; 338 [para. 168].

Counsel:

Kirby Grant, for the appellant;

D.A. Caldwell, Q.C., and Dennis James, for the respondents.

This appeal was heard at Halifax, Nova Scotia, on October 13 and 14, 2004, by Roscoe, Oland, and Hamilton, JJ.A., of the Nova Scotia Court of Appeal. Oland, J.A., delivered the following decision for the court on June 24, 2005.