Parks Projects Ltd. v. Halifax (City), (1982) 54 N.S.R.(2d) 116 (CA)

• Judge: Hart, Jones and Pace, JJ.A.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: August 12, 1982
• Jurisdiction: Nova Scotia
• Citations: (1982), 54 N.S.R.(2d) 116 (CA)

Parks Projects Ltd. v. Halifax (1982), 54 N.S.R.(2d) 116 (CA);

              112 A.P.R. 116

MLB headnote and full text

Parks Projects Limited v. Halifax, City of

(S.C.A. 00910)

(S.C.A. 00969)

Indexed As: Parks Projects Ltd. v. Halifax (City)

Nova Scotia Supreme Court

Appeal Division

Hart, Jones and Pace, JJ.A.

August 12, 1982.

Summary:

The owner and a mortgagee of expropriated property applied to determine the compensation due to them. The Nova Scotia Expropriations Compensation Board, in a decision reported in (1982), 48 N.S.R.(2d) 494; 92 A.P.R. 494, allowed the application. The Board awarded compensation and ordered the expropriating authority to pay the owner's reasonable legal, appraisal and other costs actually incurred for the purposes of determining compensation, pursuant to s. 52(1) of the Expropriation Act.

The owner and mortgagee appealed. The Nova Scotia Supreme Court, Trial Division, in a decision reported in (1982), 50 N.S.R.(2d) 476; 98 A.P.R. 476, dismissed the appeal.

A taxing master taxed the costs of the owner as ordered by the Board, in a decision unreported in these reports. The expropriating authority appealed the decision of the taxing master; the owner cross-appealed. The Nova Scotia Supreme Court, Trial Division, in a decision unreported in this series of reports, dismissed the appeal and cross-appeal.

The owner appealed both decisions of the Trial Division; the expropriating authority cross-appealed against the dismissal of his appeal of the decision of the taxing master.

The Nova Scotia Supreme Court, Appeal Division, dismissed both appeals; the court allowed the cross-appeal in part.

Expropriation - Topic 1007

Measure of compensation - Valuation of land - Highest and best use - Determination of - The Nova Scotia Court of Appeal affirmed that the highest and best use of lands was not dictated by zoning alone, but also took into account the possible future development under the development permit concept provisions of the Halifax City Charter, S.N.S. 1963, c. 52, s. 538A - See paragraph 49.

Expropriation - Topic 2207

Practice and procedure - Appeals - Scope of review by courts of decisions of boards - The Nova Scotia Court of Appeal applied the principle governing an appellate court on an expropriation appeal - The court stated that an appeal should be dismissed unless the appellant discharged the burden of establishing that the arbitrator proceeded on some incorrect principle or overlooked or misapprehended some material evidence of fact - See paragraphs 15 to 16; 56 to 57.

Expropriation - Topic 2328

Practice and procedure - Costs - Solicitor and client costs - An expropriation board at a compensation hearing ordered that the expropriating authority pay all the owner's reasonable legal costs, taxed on a solicitor-client basis - The Nova Scotia Court of Appeal affirmed the reduction, pursuant to s. 52(1) of the Expropriation Act, of the legal fees on the ground that some of the legal work performed was not related to determining compensation - See paragraph 17.

Expropriation - Topic 2330

Practice and procedure - Costs - Reasonable costs - A taxing master taxed an owner's legal fees on a solicitor-client basis and determined that $20,000.00 was a reasonable fee in the circumstances of the case, which was a straightforward claim for compensation - The Nova Scotia Court of Appeal affirmed the fee, regardless that the taxing master was most generous, because he did not err in principle or overlook or misapprehend some material evidence of fact - See paragraphs 18 to 23.

Expropriation - Topic 2330

Practice and procedure - Costs - Reasonable costs - The Nova Scotia Court of Appeal affirmed that the fees of accountants and consultants hired by an owner were not recoverable as costs against the expropriating authority, pursuant to s. 52(1) of the Expropriation Act, where there was no evidence that the services were necessary or reasonable in determining compensation - See paragraphs 24; 26.

Expropriation - Topic 2333

Practice and procedure - Costs - Witnesses - The principal officer and shareholder of the owner attended with lawyers, city council, consultants and engineers in preparation for a compensation hearing - Costs were awarded to the owner - The officer was the owner's only witness - The Nova Scotia Court of Appeal allowed the owner $600.00 costs for the officer's three days attendance at the hearing but disallowed fees for five days of negotiation and preparation - See paragraphs 27 to 36.

Words and Phrases

Other costs - The Nova Scotia Court of Appeal opined the meaning of "other costs" as found in s. 52(1) of the Expropriation Act, S.N.S. 1973, c. 7 - See paragraph 33.

Cases Noticed:

Dill v. Town of Windsor (1976), 16 N.S.R.(2d) 560; 16 A.P.R. 560, appld. [para. 12].

POW Investments Ltd. v. Province of Nova Scotia (1973), 5 N.S.R.(2d) 121 affd., 9 N.S.R.(2d) 89; 2 N.R. 145 (S.C.C.), appld. [para. 15].

J.W. Cowie Engineering Limited v. Spiropoulos (1982), 54 N.S.R.(2d) 88; 112 A.P.R. 88, consd. [para. 20].

Fairview Suede and Leather v. City of Dartmouth (1982), 51 N.S.R.(2d) 352; 102 A.P.R. 352, consd. [para. 29].

Seres v. Minister of Transportation and Communications (No. 4) (1975), 9 L.C.R. 57 (Ont. T.O.), consd. [para. 30].

Dowdell v. Australian Royal Mail Steam Navigation Company (1854), 3 E. & B. 902, consd. [para. 30].

Reiss and Hammerling v. City of Dartmouth (1979), 36 N.S.R.(2d) 472; 64 A.P.R. 472, refd to. [para. 39].

Park Projects Limited and M. Swim's (Fisheries) of Canada Limited v. City of Halifax (1982), 50 N.S.R.(2d) 476; 98 A.P.R. 476, refd to. [para. 40].

Statutes Noticed:

Expropriation Act, S.N.S. 1973, c. 7, sect. 35 [para. 11]; sect. 52 [para. 11]; sect. 52(1) [paras. 4; 13; 17; 33]; sect. 60 [paras. 9; 39].

Civil Procedure Rules (N.S.), rule 63.40 [para. 10].

Counsel:

A. William Cox, Q.C., for the appellant;

Leonard A. Kitz, Q.C., and D.A.R. Thompson, for the respondent.

These appeals were heard before HART, JONES and PACE, JJ.A., of the Nova Scotia Supreme Court, Appeal Division, on May 20, 1982.

The decision of the Court of Appeal was delivered by PACE, J.A., on August 12, 1982.