Toronto Area Transit Operating Authority v. Dell Holdings Ltd., (1997) 206 N.R. 321 (SCC)

• Judge: Cory, McLachlin, Iacobucci and Major, JJ.
• Court: Supreme Court (Canada)
• Case Date: October 09, 1996
• Jurisdiction: Canada (Federal)
• Citations: (1997), 206 N.R. 321 (SCC);[1997] SCJ No 6 (QL);206 NR 321;97 OAC 81;60 LCR 81;7 RPR (3d) 1;68 ACWS (3d) 665;JE 97-294;142 DLR (4th) 206;45 Admin LR (2d) 1;31 OR (3d) 576;[1997] ACS no 6;1997 CanLII 400 (SCC);36 MPLR (2d) 163;[1997] 1 SCR 32

Toronto Area Transit v. Dell Holdings (1997), 206 N.R. 321 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Dell Holdings Limited (appellant) v. Toronto Area Transit Operating Authority (respondent)

(24695)

Indexed As: Toronto Area Transit Operating Authority v. Dell Holdings Ltd.

Supreme Court of Canada

La Forest, Sopinka, Gonthier,

Cory, McLachlin, Iacobucci

and Major, JJ.

January 30, 1997.

Summary:

The Toronto Area Transit Operating Au­thority expropriated part of Dell Holdings Ltd.'s lands. The Municipal Board awarded, inter alia, $500,000 damages for business loss attributable to the delay by the Author­ity in expropriating the lands. The Authority appealed the validity of the award. Dell cross-appealed the quantum of the award and the interest on the award.

The Ontario Divisional Court, in a decision reported 50 O.A.C. 193, allowed the Authority's appeal and set aside the Board's ruling respecting business loss. Accordingly, the court did not deal with the cross-appeal. Dell appealed.

The Ontario Court of Appeal dismissed the appeal. Dell appealed again.

The Supreme Court of Canada, Iacobucci, J., dissenting, allowed the appeal, set aside the decisions of the courts below and restored the decision of the Municipal Board.

Administrative Law - Topic 9122

Boards and tribunals - Administrative appeals - Scope of appeal - The Supreme Court of Canada discussed the degree of deference to be given to expropriation awards by the Ontario Municipal Board - The court noted that there was no privative clause applicable to decisions of the Board, rather there were very wide powers of appeal granted under s. 33(2) of the Ex­propriations Act - The court stated that no particular deference should be given to a decision of the Board (i.e., the Board must be correct) - See paragraphs 47, 48.

Expropriation - Topic 15

Right to compensation - Interpretation of expropriation statute - The Supreme Court of Canada stated, that "... the power of an expropriating authority should be strictly construed in favour of those whose rights have been affected ... Further, since the Expropriations Act [Ont.] is a remedial statute, it must be given a broad and lib­eral interpretation consistent with its pur­pose. Substance, not form, is the governing factor" - The court referred to authority which held that "a remedial statute should not be interpreted, in the event of an am­biguity, to deprive one of common law rights unless that is the plain provision of the statute" - The court stated that "the application of these principles has resulted in the presumption that whenever land is expropriated, compensation will be paid" - See paragraphs 20 to 23.

Expropriation - Topic 1305

Measure of compensation - Elements of compensation - Disturbance and incon­venience - General - Dell Holdings owned land for which it was seeking ap­proval for residential development - The Toronto Area Transit Operating Authority wanted to expropriate part of Dell's land but the Authority took two years to decide on which land - Dell claimed under s. 13(2)(b) of the Expropriations Act for disturbance damages caused by the delay - The Ontario Municipal Board awarded $500,000 but the Board's decision was set aside by the courts - The Supreme Court of Canada restored the Board's award, holding that Dell's loss was compensable as disturbance damages - See paragraphs 16 to 45.

Expropriation - Topic 1305

Measure of compensation - Elements of compensation - Disturbance and incon­venience - General - Section 13 of the Expropriations Act (Ont.) provided that where land is expropriated, compensation payable to the owner shall be based on, inter alia, "the damages attributable to disturbance" - The Supreme Court of Canada interpreted this provision - The court rejected the contention that disturb­ance damages were only available if they arose in relation to the expropriated land itself and not to any adjoining land which the owner retained after expropriation - See paragraphs 27 to 31.

Expropriation - Topic 1305

Measure of compensation - Elements of compensation - Disturbance and incon­venience - General - Section 13 of the Expropriations Act (Ont.) provided that where land is expropriated, compensation payable to the owner shall be based on, inter alia, "the damages attributable to disturbance" - The Supreme Court of Canada interpreted this provision - The court stated, inter alia, that "... damages for disturbance can appropriately be awarded in situations where there has been an expropriation even though no damages for disturbance will be awarded in situations where there has not been an expropriation" - See paragraphs 32 to 36.

Expropriation - Topic 1305

Measure of compensation - Elements of compensation - Disturbance and incon­venience - General - Section 13 of the Expropriations Act (Ont.) provided that where land is expropriated, compensation payable to the owner shall be based on, inter alia, "the damages attributable to disturbance" - The Supreme Court of Canada interpreted this provision and discussed whether losses caused by "pre-expropri­ation delay" were compensable - See paragraphs 38 to 45.

Expropriation - Topic 1306

Measure of compensation - Elements of compensation - Business disturbance - [See all Expropriation - Topic 1305 ].

Expropriation - Topic 3053

Compensation awards - Disturbance costs - [See first Expropriation - Topic 1305 ].

Expropriation - Topic 6141

Compensation boards - Appeals - General - [See Administrative Law - Topic 9122 ].

Cases Noticed:

Bersenas v. Ontario (1984), 6 O.A.C. 102; 31 L.C.R. 97 (Div. Ct.), refd to. [para. 7].

Ridgeport Developments v. Metropolitan Toronto Region Conservation Authority (1976), 11 L.C.R. 143 (Ont. L.C.B.), refd to. [para. 11].

Hartel Holdings Co. v. Calgary (City), [1984] 1 S.C.R. 337; 53 N.R. 149; 53 A.R. 175, refd to. [para. 12].

Manitoba Fisheries Ltd. v. Canada, [1979] 1 S.C.R. 101; 23 N.R. 159, refd to. [para. 20].

Diggon-Hibben Ltd. v. R., [1949] S.C.R. 712, refd to. [para. 20].

Imperial Oil Ltd. v. R., [1974] S.C.R. 623, refd to. [para. 20].

Pacific Coast Coin Exchange of Canada et al. v. Ontario Securities Commission, [1978] 2 S.C.R. 112; 18 N.R. 52, refd to. [para. 21].

Laidlaw v. Metropolitan Toronto (Munici­pality), [1978] 2 S.C.R. 736; 20 N.R. 515, refd to. [para. 21].

Tener and Tener v. British Columbia, [1985] 1 S.C.R. 533; 59 N.R. 82, refd to. [para. 22].

Attorney-General v. De Keyser's Royal Hotel Ltd., [1920] A.C. 508 (H.L.), refd to. [para. 22].

LaFleche v. Ontario (Minister of Trans­por­tation and Communications) (1975), 8 L.C.R. 77 (Ont. Div. Ct.), agreed with [para. 30].

Montreal (City) v. McAnulty (Daniel J.) Realty Co., [1923] S.C.R. 273, refd to. [paras. 34, 58].

Director of Buildings and Lands (Hong Kong) v. Shun Fung Ironworks Ltd., [1995] 2 A.C. 111; 182 N.R. 361 (P.C.), appld. [paras. 35, 63].

Pezim v. British Columbia Securities Commission et al., [1994] 2 S.C.R. 557; 168 N.R. 321; 46 B.C.A.C. 1; 75 W.A.C. 1, refd to. [para. 47].

Souter (A.M.) & Co. v. Hamilton (City) (1972), 2 L.C.R. 167 (Ont. L.C.B.), refd to. [para. 64].

Statutes Noticed:

Expropriations Act, R.S.O. 1980, c. 148, sect. 1(1)(e), sect. 2(1), sect. 13 [para. 5]; sect. 13(2)(c) [para. 67]; sect. 15 [para. 36]; sect. 18(1), sect. 19(1) [para. 5]; sect. 21, sect. 23 [para. 36]; sect. 33(2) [para. 48].

Authors and Works Noticed:

Archambault, Jean-Denis, Les troubles de jouissance et les atteintes aux droits d'autrui résultant de travaux publics non fautifs (1990), 21 R.G.D. 5, pp. 94 to 99 [para. 34].

Black's Law Dictionary (6th Ed. 1990) [para. 56].

Boyd, Kenneth J., Expropriation in Canada (1988), p. 109 [para. 26].

Côté, Pierre-André, Interprétation des lois, 2e éd., 1990, p. 458 [para. 20].

Côté, Pierre-André, The Interpretation of Legislation in Canada (2nd Ed. 1991), p. 402 [para. 20].

Ontario, Royal Commission Inquiry into Civil Rights - Report (1968), p. 11 [para. 17].

Todd, Eric, The Law of Expropriation and Compensation in Canada (2nd Ed. 1992), p. 26 [para. 20].

Counsel:

Bryan Finlay, Q.C., Lynda C.E. Tanaka and J. Gregory Richards, for the appel­lant;

John D. Brownlie, Q.C., and Susan J. Heakes, for the respondent.

Solicitors of Record:

Weir & Foulds, Toronto, Ontario, for the appellant;

Blake, Cassels & Graydon, Toronto, Ontario, for the respondent.

This appeal was heard on October 9, 1996, before La Forest, Sopinka, Gonthier, Cory, McLachlin, Iacobucci, and Major, JJ., of the Supreme Court of Canada. The decision of the court was delivered in both official languages on January 30, 1997, including the following opinions:

Cory, J. (La Forest, Sopinka, Gonthier, McLachlin and Major, JJ., concurring) - see paragraphs 1 to 49;

Iacobucci, J., dissenting - see paragraphs 50 to 69.