Roeland v. Manitoba

• Jurisdiction: Manitoba
• Court: Court of Appeal (Manitoba)
• Judge: Chartier, C.J.M., Monnin and Cameron, JJ.A.
• Citation: 2013 MBCA 37,(2013), 291 Man.R.(2d) 219 (CA)
• Date: 18 March 2013

Roeland v. Man. (2013), 291 Man.R.(2d) 219 (CA);

      570 W.A.C. 219

MLB headnote and full text

Temp. Cite: [2013] Man.R.(2d) TBEd. MY.009

Laurence Robert Roeland (owner/respondent) v. Her Majesty The Queen In Right Of The Province Of Manitoba (authority/appellant)

(AI 12-30-07885; 2013 MBCA 37)

Indexed As: Roeland v. Manitoba

Manitoba Court of Appeal

Chartier, C.J.M., Monnin and Cameron, JJ.A.

May 9, 2013.

Summary:

In August 2004, the Province of Manitoba expropriated 31.894 acres. The owner occupied a total of 138 acres, held in two adjacent parcels, which were farmed together as a single unit. The expropriation cut diagonally across the two parcels, with only .044 acres taken from the west parcel. For the eastern parcel, the taking left two triangular-shaped pieces of land, totalling 42.31 acres. At the hearing before the Land Value Appraisal Commission (LVAC), it was agreed by both parties' appraisers that the subject property, though currently used for farming purposes, had a significant speculative value over and above its present use. The LVAC determined that the appropriate assessment was $42,350. Manitoba appealed, challenging "(a) the LVAC's determination of the market value of the land taken; (b) the award for injurious affection; and (c) the disturbance allowance (20 per cent fixed machinery cost) award."

The Manitoba Court of Appeal, in a decision reported at 280 Man.R.(2d) 86; 548 W.A.C. 86, dismissed the appeal with respect to the market value of the land taken and the award for injurious affection. The issue with respect to the disturbance allowance was returned to the LVAC pursuant to s. 44(2)(a) of the Expropriation Act. The LVAC upheld its determination that disturbance damages for fixed machinery costs should be awarded. Manitoba appealed. Roeland cross-appealed.

The Manitoba Court of Appeal allowed the appeal. There was no need to deal with the cross-appeal.

Expropriation - Topic 1305

Measure of compensation - Elements of compensation - Disturbance and inconvenience - For the purposes of twinning a major highway, the Province of Manitoba expropriated a portion of 138 acres of land then being farmed by Roeland - As a result of the expropriation, approximately 31.05 acres of that 138-acre parcel were taken, resulting in a severance of the subject land into two distinct and separate parcels located on each side of the newly twinned highway - As the parties could not agree on the appropriate compensation to be paid to Roeland for the taking of his land, the matter proceeded to a hearing before the Land Value Appraisal Commission (LVAC) - The LVAC determined that the appropriate assessment was $42,350 - The highest and best use of the land was farm land - The LVAC also applied the 20% fixed machinery cost (disturbance allowance) - Following an appeal, the LVAC upheld its determination - Manitoba appealed - The Manitoba Court of Appeal allowed the appeal - Under s. 28(2) of the Act, if land was valued in a manner other than its present use and that value was higher than that of the present use, there could be no disturbance award - The land here was farmland and it was valued as speculative farmland - That was an "other" use and, as it was assessed and compensated at a higher value, there should be no disturbance award.

Cases Noticed:

Pike v. Minister of Housing (1979), 20 L.C.R. 166 (Ont. Div. Ct.), refd to. [para. 10].

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. 16].

Harder v. Manitoba Public Insurance Corp. et al. (2012), 284 Man.R.(2d) 254; 555 W.A.C. 254; 2012 MBCA 101, refd to. [para. 17].

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. 18].

Horn v. Sunderland Corp., [1941] 1 All E.R. 480 (C.A.), refd to. [para. 21].

Statutes Noticed:

Expropriation Act, R.S.M. 1987, c. E-190, C.C.S.M., c. E-190, sect. 28(2) [para. 8].

Counsel:

W.G. McFetridge, for the appellant;

J.C. Stewart and U.A. Saeed, for the respondent.

This appeal and cross-appeal were heard on March 18, 2013, by Chartier, C.J.M., Monnin and Cameron, JJ.A., of the Manitoba Court of Appeal. The following judgment of the Court of Appeal was delivered by Monnin, J.A., on May 9, 2013.