Roberts et al. v. Newfoundland and Labrador (Minister of Transportation and Works), 2005 NLCA 26

JudgeCameron, Rowe and Mercer, JJ.A.
CourtCourt of Appeal (Newfoundland)
Case DateFebruary 16, 2005
JurisdictionNewfoundland and Labrador
Citations2005 NLCA 26;(2005), 247 Nfld. & P.E.I.R. 107 (NLCA)

Roberts v. Nfld. (2005), 247 Nfld. & P.E.I.R. 107 (NLCA);

    735 A.P.R. 107

MLB headnote and full text

Temp. Cite: [2005] Nfld. & P.E.I.R. TBEd. MY.031

David Roberts and Fogo Island Property Holdings Limited (appellant/respondent by cross-appeal) v. Her Majesty the Queen in the Right of The Province of Newfoundland and Labrador, as represented by the Minister of Transportation and Works (respondent/appellant by cross-appeal)

(04/74; 04/87; 2005 NLCA 26)

Indexed As: Roberts et al. v. Newfoundland and Labrador (Minister of Transportation and Works)

Newfoundland and Labrador Supreme Court

Court of Appeal

Cameron, Rowe and Mercer, JJ.A.

May 19, 2005.

Summary:

The appellants appealed a decision of the Public Utilities Board that fixed the amount of compensation to be paid to the appellants for expropriation of their lands on the issue of the amount of compensation. The Crown cross-appealed on the issues of the amount of compensation and the award of costs.

The Newfoundland and Labrador Court of Appeal dismissed the appeal and cross-appeal.

Expropriation - Topic 1011

Measure of compensation - Valuation of land - General - Value to owner - Effect of plans of expropriating authority - The Newfoundland and Labrador Court of Appeal discussed the principle that compensation for expropriation could not include an increase in value which was entirely due to the scheme underlying the acquisition - See paragraphs 24 to 44.

Expropriation - Topic 1013

Measure of compensation - Valuation of land - General - Increase in value of owner's land resulting from a partial taking - The Crown planned the construction of a new hospital on Fogo Island - The Crown came to an agreement with the appellants for the expropriation of their lands (motel property and adjoining properties) - The Public Utilities Board fixed the amount of compensation - The Crown appealed - The Crown argued that the Board erred in failing to apply s. 27(1)(g) of the Expropriation Act which stated that "in all cases an advantage that the owner may derive or be likely to derive directly or indirectly from the contemplated work and operations for which the land is expropriated shall be taken into account in reduction of the amount of the compensation" - The Crown argued that a contractor working on the construction of the hospital rented the appellants' remaining property during construction and made improvements to the appellants' house - The Newfoundland and Labrador Court of Appeal dismissed the appeal - The alleged benefit was not based on any increase in value of the remaining acres of the appellants' property and therefore was not a benefit to which s. 27(1)(g) was directed - See paragraphs 47 to 51.

Expropriation - Topic 1058

Measure of compensation - Factors or considerations affecting valuation - Development schemes or plans - [See Expropriation - Topic 1011 ].

Expropriation - Topic 1100

Measure of compensation - Special adaptability - General - The Crown planned the construction of a new hospital on Fogo Island - The Crown came to an agreement with the appellants for the expropriation of their lands (motel property and adjoining properties) - The Public Utilities Board fixed the amount of compensation - The appellants appealed - The appellants argued that the Board erred in refusing to consider the special adaptability and suitability of their land for development - At issue was whether the Board properly interpreted s. 27(1)(c) of the Expropriation Act which stipulated that "in fixing the amount of compensation ... (c) the special suitability or adaptability of the land for a purpose shall not be taken into account where that purpose is one ... for which there is not a market apart from the special needs of a particular purchaser..." - The Newfoundland and Labrador Court of Appeal dismissed the appeal - The court held that "the special suitability that the appellants argue makes their land more valuable is for provision of land for expansion of and access to the motel, and for the supply of water for the operation of the motel. Certainly, if this is an advantage, it is one that would be limited to the owners of the motel. As a consequence, I would agree with the Board that any special value that the appellants lands might have as a result of the need of the motel owner to expand or facilitate access to its property, for example, would be excluded from consideration by virtue of section 27(1)(c) as it would be a special value for which there is not a market apart from the needs of one purchaser" - See paragraphs 15 to 23.

Expropriation - Topic 2336

Practice and procedure - Costs - Cost of appraisal - The Crown planned the construction of a new hospital on Fogo Island - The Crown came to an agreement with the appellants for the expropriation of their lands (motel property and adjoining properties) - The Public Utilities Board fixed the amount of compensation at $48,025 plus interest and awarded costs to the appellant - On the issue of the cost of the appraisals of the properties, notably, an appraisal by Kirkland done for the appellants, the Board referred the matter to a taxing master - The Crown appealed, arguing that the engagement of Kirkland was not reasonable and the expense should not have been sent to a taxing master - The Newfoundland and Labrador Court of Appeal dismissed the appeal - The court held that the Board had dealt with the reasonableness of Kirkland's engagement - There was no error by the Board to send the matter of the expense to a taxing master, who would apply the same tests as the Board - See paragraphs 58 to 61.

Expropriation - Topic 2339

Practice and procedure - Costs - Effect of offers to settle or advance payments - The Crown planned the construction of a new hospital on Fogo Island - The Crown came to an agreement with the appellants for the expropriation of their lands (motel property and adjoining properties) - The Public Utilities Board fixed the amount of compensation at $48,025 plus interest and awarded costs to the appellant pursuant to s. 34(3) of the Expropriation Act - The Crown appealed - The Crown argued that the Board erred in concluding that a $50,000 (including interest) settlement offer refused by the appellants was less than the award by the Board and therefore erred in awarding costs to the appellants - The Newfoundland and Labrador Court of Appeal dismissed the appeal - The Board compared its award (valuation as of the date of vesting) with the offer of the Crown, adjusted to remove from consideration interest for the period from the date of taking to the date of the offer - There was no error in the Board's approach or the conclusion that its award was greater than the settlement offer - See paragraphs 56 to 57.

Cases Noticed:

Newfoundland (Minister of Works, Services and Transportation) v. Airport Realty Ltd. (2001), 205 Nfld. & P.E.I.R. 95; 615 A.P.R. 95 (Nfld. C.A.), folld. [para. 7].

Associated Builders Ltd. v. Minister of Public Works (1978), 19 Nfld. & P.E.I.R. 371; 50 A.P.R. 371 (Nfld. C.A.), refd to. [para. 10].

Pointe Gourde Quarrying & Transport Co. v. Superintendent of Crown Lands, [1947] A.C. 565 (P.C.), appld. [para. 11, footnote 6].

Rizzo and Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, refd to. [para. 15].

Bell ExpressVu Limited Partnership v. Rex et al., [2002] 2 S.C.R. 559; 287 N.R. 248; 166 B.C.A.C. 1; 271 W.A.C. 1, refd to. [para. 15].

Waters et al. v. Welsh Development Agency, [2004] N.R. Uned. 118; [2004] UKHL 19, refd to. [para. 16].

Inland Revenue Commissioners v. Clay and Inland Revenue Commissioners v. Buchanan, [1914] 3 K.B. 466 (C.A.), refd to. [para. 17].

Batchelor v. Kent County Council, [1990] 1 E.G.L.R. 32 (C.A.), refd to. [para. 17].

Blandrent Investments Developments Ltd. v. British Gas Corporation, [1979] E.G.D. 721 (H.L.), refd to. [para. 19].

Newfoundland (Minister of Public Works and Services) v. Reid Newfoundland Co. et al. (1983), 43 Nfld. & P.E.I.R. 5; 127 A.P.R. 5 (Nfld. C.A.), refd to. [para. 21].

Fletcher Estates Ltd. v. Environmental Secretary (H.L.(E.)), [2000] 2 A.C. 307, refd to. [para. 24].

Cunard v. The King (1910), 43 S.C.R. 88, refd to. [para. 24].

Metropolitan Borough Council v. Tudor Properties Ltd., [2000] RVR 292; [2000] E.W.J. No. 2208 (C.A.), refd to. [para. 28].

Re an Arbitration between Lucas and the Chesterfield Gas and Water Board, [1909] 1 K.B. 16, refd to. [para. 28].

Fraser v. Fraserville (City), [1917] A.C. 187 (P.C.), refd to. [para. 28].

Vyricherla Narayana v. Revenue Divisional Officer, Vizagapatam, [1939] A.C. 302 (J.C.), consd. [para. 29].

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. 31].

Director of Buildings and Lands (Hong Kong) v. Shun Fung Ironworks Ltd., [1995] 2 A.C. 111; 182 N.R. 361 (P.C.), refd to. [para. 31].

Fraser v. R., [1963] S.C.R. 455, refd to. [para. 32].

Lamb v. Manitoba Hydro-Electric Board, [1966] S.C.R. 229; 55 D.L.R.(2d) 654, refd to. [para. 32].

Re Victoria & Grey Trust Co. and Trent University, [1970] 1 O.R. 622 (C.A.), refd to. [para. 32].

Saint John Priory of Canada Properties v. Saint John (City) (1970), 3 N.B.R.(2d) 167 (CA), revd. [1972] S.C.R. 746; 4 N.B.R.(2d) 344, consd. [para. 32].

Re Weidman and Minister of Public Works (B.C.) (1979), 99 D.L.R.(3d) 472 (B.C.C.A.), refd to. [para. 32].

Smith-Roles Ltd. v. Saskatoon (City), [1978] 2 S.C.R. 1121; 22 N.R. 111, refd to. [para. 44].

Finn v. St. John (City) (2003), 230 Nfld. & P.E.I.R. 304; 682 A.P.R. 304 (Nfld. & Lab. T.D.), refd to. [para. 57].

Marcotte v. Martin (2004), 236 Nfld. & P.E.I.R. 1; 700 A.P.R. 1; 2004 NLSCTD 56, refd to. [para. 57].

Bartlett v. Corner Brook (City) (2004), 240 Nfld. & P.E.I.R. 49; 711 A.P.R. 49; 2004 NLCA 50, refd to. [para. 58].

Statutes Noticed:

Expropriation Act, R.S.N.L. 1990, c. E-19, sect. 27(1)(c), sect. 27(1)(g) [para. 9].

Authors and Works Noticed:

Driedger, Elmer A., Construction of Statutes (2nd Ed. 1983), generally [para. 15].

United Kingdom, Law Commission of England and Wales, Compulsory Purchase and Compensation: Disregarding "The Scheme" (2001), generally [para. 16].

Todd, Eric C.E., The Law of Expropriation and Compensation in Canada, (2nd Ed. 1992), generally [para. 34]; pp. 151 [para. 42]; 153 [para. 11]; 362 [paras. 48, 49].

Counsel:

Michael Crosbie, for the appellant;

Lori Savory, for the respondent.

This appeal and cross-appeal were heard on February 16, 2005, before Cameron, Rowe and Mercer, JJ.A., of the Newfoundland and Labrador Court of Appeal. The following decision of the court was delivered by Cameron, J.A., on May 19, 2005.

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