Westphal Estates Ltd., Re, (1976) 17 N.S.R.(2d) 273 (CA)

• Judge: MacKeigan, C.J.N.S., Cooper and Macdonald, JJ.A.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: June 04, 1976
• Jurisdiction: Nova Scotia
• Citations: (1976), 17 N.S.R.(2d) 273 (CA)

Westphal Estates Ltd., Re (1976), 17 N.S.R.(2d) 273 (CA);

    19 A.P.R. 273

MLB headnote and full text

Re Westphal Estates Limited

Indexed As: Westphal Estates Ltd., Re

Nova Scotia Supreme Court

Appeal Division

MacKeigan, C.J.N.S., Cooper and Macdonald, JJ.A.

June 4, 1976.

Summary:

This case arose out of a landowner's claim for compensation for land expropriated by the Province of Nova Scotia. The Province expropriated 943 acres of land, including 42.8 acres of the landowner's undeveloped land, on the outskirts of the City of Dartmouth as a land assembly scheme for the Nova Scotia Housing Commission. The landowner made an application to the Nova Scotia Supreme Court for compensation. The Supreme Court valued the landowner's land at $128,400, at $3,000 an acre. The Supreme Court found that the highest and best use of the land taken was development for residential and townhouse lots. See 16 N.S.R.(2d) 53.

On appeal by the Province to the Nova Scotia Supreme Court, Appeal Division, the appeal was allowed and the compensation award was reduced to $89,007.84, including valuation of the land at $85,000, at $2,000 an acre.

Cooper, J.A., dissenting, would have dismissed the appeal and affirmed the compensation award of the trial judge.

Expropriation - Topic 1010

Measure of compensation - Valuation of land - General - The Nova Scotia Court of Appeal stated that the value to be placed on expropriated land is the value to the owner and not to the taker and was the price which the owner, as a prudent man, would pay at that moment for the property rather than be ejected from it - see paragraphs 1 and 44.

Expropriation - Topic 1036

Measure of compensation - Methods of valuation - Comparative market data method - The Nova Scotia Court of Appeal used the comparative market data method to arrive at the valuation of 42.8 acres of undeveloped land expropriated as part of a land assembly scheme - see paragraphs 9 to 37.

Expropriation - Topic 1076

Measure of compensation - Evidence of value - Opinion of layman - Competence - Non-professional evidence of value - The arbitrator accepted the evidence of businessmen on the value of certain property in addition to that of professional appraisers - The Nova Scotia Court of Appeal held that the evidence of the businessmen was relevant and admissible - see paragraphs 82 to 90.

Expropriation - Topic 1078

Measure of compensation - Valuation - Evidence of value - Expert appraisals - Function of court respecting - Expropriation Act, R.S.N.S. 1967, c. 96, ss. 11, 18 - The arbitrator had before him 6 expert appraisals varying from $33,100 to $197,300 for 42.8 acres of land - The arbitrator selected one of the appraisals as the correct valuation - The Nova Scotia Court of Appeal held that the arbitrator had a duty to analyze and assess the strength and logical validity of the various expert appraisals and to arrive at his own valuation - The Appeal Division held that it was not sufficient to merely select one of the appraisals - see paragraphs 3 to 8.

Expropriation - Topic 2203

Procedure - Appeals - General principles - The Nova Scotia Court of Appeal stated that an appeal from a compensation award 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 1 and 43.

Expropriation - Topic 3004

Compensation award - Undeveloped subdivision land - The Province of Nova Scotia expropriated 943 acres of land on the outskirts of the City of Dartmouth, including 42.8 acres of undeveloped land owned by the applicant - The Nova Scotia Court of Appeal found that the highest and best use for the land was development for residential or townhouse lots - The Appeal Division reduced the award to the owner from $128,400 at $3,000 an acre to $85,000 at $2,000 an acre - see paragraphs 9 to 37.

Expropriation - Topic 1045

Measure of compensation - Methods of valuation - Cost to develop method - The Nova Scotia Court of Appeal stated that the cost to develop method of valuation should not be considered unless comparative market data are not available - The Appeal Division rejected the cost to develop method where development of the land in question would necessarily take place over too long a time to permit accurate estimates of economic factors - see paragraphs 17 to 22.

Cases Noticed:

R. v. Greenough et al. (1975), 10 N.S.R.(2d) 598, folld. [para. 9].

R. v. Harris et al. (1975), 11 N.S.R.(2d) 361, folld. [para. 9].

Re Devitt and Minister of Public Works for Ontario, [1968] 2 O.R. 464, folld. [para. 17].

POW Investments Limited v. Province of Nova Scotia (1973), 5 N.S.R.(2d) 121, appld. [para. 44].

Harris v. Minister of Lands and Forests (1975), 11 N.S.R.(2d) 361, appld. [para. 45].

Cedar Rapids Manufacturing & Power Co. v. Lacoste, [1914] A.C. 569, appld. [para. 45].

Diggon-Hibben Limited v. R., [1949] S.C.R. 712, appld. [para. 45].

Re Ives (1966), 5 N.S.R. 1965-69 524; 58 D.L.R.(2d) 425, folld. [para. 87].

Whittier Park Development Corp. Ltd. et al. v. Metropolitan Corporation of Greater Winnipeg (1975), 5 L.C.R. 39, folld. [para. 87].

Statutes Noticed:

Civil Procedure Rule (N.S.), rule 62.27 [para. 92].

Expropriation Act, R.S.N.S. 1967, c. 96, sect. 11, sect. 18 [para. 3]; sect. 3(1) [para. 38].

Public Service Act, R.S.N.S. 1967, c. 255, sect. 4(e) [para. 38].

Counsel:

Thomas B. Davis, Q.C., and Frederick E. Clark, for the appellant;

Harold F. Jackson, Q.C., for the respondent.

This case was heard on October 16 and 17, 1975, at Halifax, Nova Scotia, before MacKEIGAN, C.J.N.S., COOPER and MacDONALD, JJ.A., of the Nova Scotia Supreme Court, Appeal Division. The judgment of the Appeal Division was delivered on June 4, 1976, and the following opinions were filed:

MacKEIGAN, C.J.N.S.- see paragraphs 1 - 38.

COOPER, J.A. (dissenting) - see paragraphs 39 - 92.

MacDONALD, J.A., concurred with MacKEIGAN, C.J.N.S.