Supreme Court of Canada
Diggon-Hibben
Ltd. v. The King, [1949] S.C.R. 712
Date:
1949-10-04
Diggon-Hibben, Limited Appellant;
and
His Majesty The King Respondent.
1949: February 3, 4; 1949: October 4.
Present: Rinfret C.J. and Taschereau, Rand, Estey and Locke
J.J.
ON APPEAL FROM THE EXCHEQUER COURT OF CANADA
Expropriation—Large business—Compensation—What is to be
determined—Value to owner—Disturbance claim—Compulsory taking— Exchequer Court
Act, R.S.C. 1927, c. 34, s. 47—Expropriation Act, R.S.C. 1927, c. 64.
In an expropriation of property on which a large business was
being carried on.
Held: That what is to be determined is the value to the
owner as it existed at the time of the taking and not to the taker; this value
includes all advantages which the land possesses and should take into account
losses by reason of disturbance.
Held: Also, that s. 47 of the Exchequer Court Act, R.S.C.
1927, c. 34, neither declares the right of an owner to receive compensation nor
defines the quantum but merely the date as of which the latter is to be
determined.
Held: Further, that in the circumstances of this case
an allowance of ten per cent of the value of the land for compulsory
taking—although not a matter of right in all cases—should be made in addition
to the amount awarded at the trial.
Per The Chief Justice and Locke J. (dissenting): An allowance
of ten per cent for compulsory taking is not a matter of right and can only be
justified as a part of the valuation and in the circumstances of this case
should not be allowed.
[Page 713]
Cedars Rapids Manufacturing and Power Co. v. Lacoste [1914]
A.C. 569; Pastoral Finance Assoc. Ltd. v. The Minister, [1914] A.C. 1083;
Vyricherla Narayana v. The Revenue Officer, [1939] A.C. 302; Commissioners of
Inland Revenue v. Glasgow and S.W.Ry., (1887) 12 A.C. 315 and Irving Oil Co.
Ltd. v. The King, [1946] S.C.R. 551 referred to.
APPEAL from the judgment of the President of the
Exchequer Court of Canada, Thorson J., awarding to the appellant the sum of
$120,000 in full compensation for the property expropriated by the Crown under
the Expropriation Act, R.S.C. 1927, c. 64. The Crown had offered
$99,670, while appellant had claimed $232,165.34. The appellant appealed to
this Court for an increase of the award granted by the Court below.
J. A. Byers for the appellant.
F. P. Varcoe, K.C. and W. R. Jackett for
the respondent.
The Chief Justice (dissenting):
I agree with the reasons of my brother Locke and would dismiss the appeal with
costs.
The judgment of Taschereau and Rand JJ. was delivered by
Rand J.: In
the case of Irving Oil Company v. The King , it was
held that while an allowance of 10 per cent for compulsory taking is not a
matter of right, in circumstances presenting difficulty or uncertainty in
appraising values, such as were found there, the practice of making that
allowance applied. Similar circumstances are present here; in fact in the
general character of the two situations there is no difference whatever. For
that reason, I think the allowance should be made. The value of the land has
not been specifically found by the President of the Exchequer Court, but a
consideration of his reasons satisfies me that he had in mind something in the
neighbourhood of $100,000. I would, therefore, add $10,000 to the amount
awarded by him.
In the course of the trial and in his reasons, the President
expressed certain views on that rule for determining compensation which defines
it as the value of the land to the owner. This formulation not only contrasts
the value to the owner as distinguished from the value to the taker, but
[Page 714]
embodies another sense; i.e. the content of value to the
owner as against other possible owners. In Pastoral Finance Association v.
The Minister , Lord Moulton stated it in the latter
aspect in these words:
Probably the most practical form in which the matter can be
put is that they (the owners) were entitled to that which a prudent man in
their position would have been willing to give for the land sooner than fail to
obtain it.
The question arises here in connection with the claim for
disturbance of possession, including expenses of moving, damages to or loss of
fixtures, and for interruption of business generally. The debate is whether
these are to be taken as elements of the value of the land to the owner or items
of an independent claim for damages. There is no serious dispute that they
should be allowed; that they must be such as can be brought within the scope of
the "value of the land to the owner" has not been questioned; and
what is at issue in the particular items is in reality a conceptual refinement
which is devoid of practical significance.
In Vyricherla Narayana v. The Revenue Officer ,
Lord Romer observed that the statement, "value to the owner" was not,
in strictness, accurate. The land, for instance, he said, may have for the
vendor a sentimental value far in excess of its market value. Accepting this as
a proper correction in verbal accuracy, it does not affect the rule as adopted
in this country, because value of that sort has never been taken to be within
it. But I should remark that the precise question before Lord Romer was the
basis of compensation when the only possible purchaser was the expropriating
authority.
It would seem, however, that the meaning of Lord Moulton's
language has been somewhat misconceived by the President. In the present case
these questions were asked:
Q. Are you able to express an opinion as to whether a
purchaser would be willing to pay more than $98,670 for the property in view of
the fact that the defendant would suffer some loss or disturbance rather than
fail to get the property?
A. No, I think that would be—the defendant might not then be
a willing vendor.
Q. How much do you think a prospective purchaser who is
anxious to get the property might be prepared to pay to the vendor in view of
the disturbance factors that are present?
A. Yes, I think he would pay more for it..
[Page 715]
And in the reasons there is the following:
In arriving at this valuation, Mr. Winslow did not take any
disturbance to the defendant into account, but expressed the opinion that an
anxious purchaser might be willing to meet the owner's disturbance claims by
paying from $10,000 to $20,000 more than the amount of his valuation sooner
than fail to obtain the property.
It is obvious that the purchaser will pay according to the
strength or value of his interest or his "anxiety" to obtain the
property and to nothing else. He is not concerned with the consequences of
disturbance to the owner. The statement means, as Mr. Varcoe on the argument
frankly conceded, that the owner at the moment of expropriation is to be deemed
as without title, but all else remaining the same, and the question is what
would he, as a prudent man, at that moment, pay for the property rather than be
ejected from it. It is assumed, in the situation here, that he is to continue
in business. In this we have no need of an imaginary market, purchase, or
interest; we have the real interest of the owner, and its measurement in value
is the task for the Court. The rule applies to cases such as this where the
possibilities of the land for which the claim is made are actually realized by
the owner in the use to which he has put it: Irving Oil Company v. The
King (supra). A compensation statute should not be approached
with the attitude that Parliament intended an individual to be victimized in
loss because of the accident that his land rather than his neighbour's should
be required for public purposes; and this Court in the case mentioned was
confirmed in its conception of the rule by the fact that in the definition of
the word "land" in the Expropriation Act the word "damages"
is included, a word which does not appear in the definition clause of the
English Act. But all such subsidiary items involved in the disturbance of
possession and the direct result of the forcible taking become embraced within
the actual value of the land to the owner as fully as any other feature of it.
I do not mean to imply that this rule is a formula for all cases. There are so
many different situations to be met in the use of lands, that in some of them,
as for example, those calling for reinstatement, or that dealt with in The
Prince's Street Gardens Arbitration, reported in Cripps on Compensation, 8th Ed., at p. 916, in both
[Page 716]
of which values other than commercial or economic are
present, its application would be difficult if not impossible.
Section 47 of the Exchequer Court Act has been drawn
into the question. In Toronto v. Brown , Duff,
J. in a review of characteristic authority, treats a right to compensation as
the necessary implication and assumption of the Expropriation Act, in which, if
I may say so, I think him entirely right. Section 47 is a procedural provision
which, likewise assuming that right, fixes the time as of which the
compensation is to be ascertained; but that it is intended to constitute the
provision from which alone the right arises and that it contains a precise and
restrictive definition of the compensation to be made is an interpretation for
which neither in its history nor in its language is there any warrant.
I would, therefore, allow the appeal with costs and vary the
judgment below by adding to it the sum of $10,000.
Estey J.: His
Majesty The King in the right of the Dominion of Canada under the provisions of
the Expropriation Act, R.S.C. 1927, c. 64, as of February 18, 1946,
expropriated lots 1599, 1600, 1601 and 1602 in the City of Victoria.
The appellant owned these lots and thereon conducted a
wholesale and retail business in books, stationery, business supplies, office
furniture, a lending library, and also operated printing presses and equipment
for catering to many types of printing requirements.
Section 23 of the Expropriation Act provides:
23. The compensation money agreed upon or adjudged for any
land or property acquired or taken for or injuriously affected by the
construction of any public work shall stand in the stead of such land or
property.
Section 2(d) of the Expropriation
Act defines "land" as follows:
2. In this Act, unless the context otherwise requires:
. . . . . . . . . . .
(d) "land" includes all granted or ungranted, wild
or cleared, public or private lands, and all real property, messuages, lands,
tenements and hereditaments of any tenure, and all real rights, easements,
servitudes and damages, and all other things done in pursuance of this Act, for
which compensation is to be paid by His Majesty under this Act.
[Page 717]
When the parties failed to agree as to the compensation the
Attorney-General for Canada commenced these proceedings under sec. 19(a)
of the Exchequer Court Act:
19. The Exchequer Court shall also have exclusive original
jurisdiction to hear and determine the following matters:
(a) Every claim against the Crown for property taken
for any public purpose.
Then sec. 47 of the Exchequer Court Act specifies
that the value shall be determined as of the date the property was taken.
The decision in Irving Oil Co. Ltd. v. The King
determines the issues in this case. There, as here, a business was operated on
the premises and it was held, in accord with the established principles, that
the compensation awarded included the value of the land, the cost of moving and
other expenses and damages (as this word is used in 2(d)) and 10
per cent for compulsory taking. Kerwin, J., with whom the Chief Justice agreed
stated at p. 556:
… the principle in this class of case is that the displaced
owner should be left as nearly as possible in the same position financially as
he was prior to the taking, provided that the damage, loss or expense for which
compensation was claimed was directly attributable to the taking of the lands.
Rand J., at p. 561:
The clause "shall stand in the stead of such land or
property" can only mean that, with the compensation money in the hands of
the owner, he is in, the equivalent position of holding his land or property
instead of the money. He is, therefore, under that section, in the sense
indicated, to be made economically whole.
The well-known cases of Cedars Rapids Manufacturing and
Power Co. v. Lacoste and Pastoral Finance Assoc. Ltd. v.
The Minister were cited and followed. It is the
value to the owner and not the market value or value to the purchaser that must
be determined. In the determination of that value to the owner various items
may be considered and these will vary according to the circumstances of
particular cases. The total of the items that may properly be taken into
account determines the value to the owner. Commissioners of Inland Revenue v.
Glasgow and S.W. Ry. . There the land was acquired under
statutory authority and the jury in assessing the compensation made the award
under three headings. The precise question there determined was that the £9499
8s. 3d.,
[Page 718]
being the compensation for loss of business, should be
regarded as part of the consideration in determining the stamp duty. Lord
Halsbury at p. 321 stated:
Now the language of the legislature is this—that what the
jury have to ascertain is the value of the land. In treating of that value, the
value under the circumstances to the person who is compelled to sell (because
the statute compels him to do so) may be naturally and properly and justly
taken into account; and when such phrases as "damages for loss of
business" or "compensation for the goodwill" taken from the
person are used in a loose and general sense, they are not inaccurate for the
purpose of giving verbal expression to what everybody understands as a matter
of business; but in strictness the thing which is to be ascertained is the
price to be paid for the land—that land with all the potentialities of it, with
all the actual use of it by the person who holds it, is to be considered by
those who have to assess the compensation.
The learned President with respect to the property accepted
the evidence of Mr. Winslow. There was a substantial difference in the values
expressed but Mr. Winslow was not at great variance with some others. In any
event, the learned President heard the witnesses and had the benefit of a view
of the premises, and I think his conclusion with respect to the value of the property
should be accepted:
I was very favourably impressed by the evidence given by Mr.
Winslow on behalf of the defendant. He made a valuation of the property as a
whole of $98,670.
. . . . . . . . . . .
Having regard to the evidence given, the opinions of the
experts, the view taken by the Court and the arguments of counsel, and having
taken into account the various factors and elements of value that have been
brought to the attention of the Court, including the defendant's claims for
disturbance, I have come to the conclusion that if I were to award the
defendant the sum of $120,000 for the expropriated property this would
adequately cover every element of value that could properly be taken into
account, and at the same time meet the tests of value that the governing cases
lay down. I think that a prudent purchaser, anxious to obtain the property,
might well have been willing to pay that amount rather than fail to obtain it.
The learned President considered the losses and expenses
under the heading of "Disturbance Allowance" and stated he would not
fix the amount thereof higher than $20,000. The items claimed under this
heading by the appellant totalled $99,714. The first of $4,000 covered surveys,
plans and appraisals and executive time searching for suitable premises. The
evidence disclosed that much of this work was undertaken in order to effect
improvements in the general conduct of the business quite apart from
[Page 719]
any question of expropriation. Even if in an appropriate
case some such an allowance might have been made, the evidence here does not
establish the actual work and the cost thereof in that connection. In fact the
appellant's witness admitted that only a minor part thereof was claimed and
suggested the amount of $850 but did not in any way indicate what this covered
or how it was computed. I am therefore in agreement with the learned
President's refusal to allow this amount.
The balance of $95,714 included actual moving expenses and
increased cost resulting from moving. Since the hearing before the learned
President the appellant has altered its plans with the result that counsel
reduced many and abandoned certain of the items that were pressed before the
learned President, until the items, apart from those to be immediately
discussed, totalled between $20,000 and $25,000.
The other items making up the total of $95,714 consisted
mainly of claims based upon an estimated loss of sales and consequent loss of
profits over a period of five years. A perusal of the evidence submitted to
establish this loss is not convincing apart from that incurred in the actual
moving and allowed for under a separate heading. In fact the
secretary-treasurer of the appellant when asked: "The move might be
beneficial?" replied: "I admit that possibility also but I put in a
figure because there is a possibility of a loss." Moreover, counsel for
the appellant informed us that since the hearing other premises have been
obtained which it may be assumed are more satisfactory. Quite apart from this
latter factor, however, I am in agreement with the learned President that upon
the evidence the items are not established and cannot be allowed.
The learned President made no allowance for compulsory
taking. He apparently adopted a valuation of the property at about $100,000 and
stated that he could not fix the disturbance allowance higher than $20,000 and
allowed as a total compensation $120,000.
The allowance for compulsory taking is founded upon a long
established practice in the Courts and is granted as part of the compensation.
It is a factor in the compensation separate and apart from what would be
included as
[Page 720]
disturbance allowance. So well established was the practice
in Great Britain that as early as 1890 when it was deemed undesirable to make
this allowance in connection with certain properties a statute was enacted to
that effect (s. 21, of the Housing of the Working Classes Act, 1890, 53
& 54 Vict., c. 70). It was there provided that when land was taken in an
unhealthy area no "additional allowance in respect of compulsory
purchase" shall be made. The distinction between the allowance for
disturbance and that for compulsory taking was emphasized in Great Britain in
1919 with the passage of the Acquisition of Land (Assessment of Compensation
Act, 1919) where in sec. 2(1) it is specifically provided that an allowance
for compulsory taking is not permitted under that Act while in sec. 2(6) it is
specifically provided that rule 2 should not affect the allowance for
disturbance. This provision is dealt with in Horn v. Sunderland Corp.
.
In this Court the allowance for compulsory taking was granted in Irving Oil
Co. Ltd. v. The King and prior thereto in The King v.
Trudel ; The King v. Hunting, et al ; The King v.
Hearn .
The amount allowed may be varied and there are cases where,
having regard to the circumstances, no allowance should be made, but, with
great respect, the circumstances in this case do not distinguish it from these
cases in which an amount for compulsory taking was allowed. This amount is computed
on a percentage of the value of the land, and therefore the sum of $120,000
should be altered by adding thereto the sum of $10,000 for compulsory taking.
The judgment appealed from should be so varied and the
appellant should have its costs of this appeal.
Locke J.
(dissenting): This is an appeal from a judgment of the Exchequer Court whereby
it was found that the amount of compensation to which the appellant was
entitled for its property in the City of Victoria, expropriated by the Crown
under the provisions of the Expropriation Act, R.S.C. 1927, cap. 64, was
the sum of $120,000. The lands taken consisted of Lots 1599, 1600, 1601 and
[Page 721]
1602, constituting a rectangular block having a sixty foot
frontage on Government Street and a like frontage on Langley Street. Upon this
property there was a two-story building wherein the appellant has carried on
since 1919 the business of a wholesale and retail dealer in books, stationery,
office furniture and other like supplies, and has operated a printing establishment.
The information filed by the Crown alleged that a sum of $99,670 was sufficient
to compensate for the taking of the said lands and premises and for the loss
and damage alleged to have been caused by such taking. The appellant by its
defence asserted that it was entitled to the sum of $232,165.34 and interest.
Particulars of this claim furnished by the appellant were as follows:
1. Value to the owner of the said lands and
premises and compulsory
dispossession of
the same ……………………………………. $132,451.00
2. Surveys, plans and search for new and sui-
table premises ………………………………. 4,000.00
3. Actual moving costs resulting from the ex-
propriation …………………………………… 41,710.31
4. Increased costs of operations resulting from
the removal ……………………………………. 54,004.03
__________
$232,165.34
As to the value to be assigned to the land, the buildings
and certain fixtures forming part of the freehold which the appellant would be
unable to remove and as to the value of which there was no conflict, there was
the usual wide divergence of opinion among the expert witnesses called. For the
owners, Mr. George A. Okell, a former city assessor for the City of Victoria,
was of the opinion that if $10,000 to $15,000 was spent upon the building the
revenue returns from rental would justify a valuation of from $180,000 to
$185,000, while admitting that at the time of expropriation in 1946, when
business rentals were subject to the Rental Regulations, he did not think it
could have been sold for that amount. The building on the property was a
composite of three buildings erected on Lots 1599, 1600 and 1601 some forty or
fifty years ago, and a structure erected on Lot 1602 in 1932 at a cost of
[Page 722]
$8,000. As to these buildings, Mr. Charles F. Dawson,
District Resident Architect at Victoria of the Department of Public Works for
Canada, was of the opinion that they had outlived their usefulness. He had
examined them and estimated that in 1946, at the time of the expropriation, it
would have cost $54,349 to replace them with similar new construction and
considered that from that figure there should be a deduction of 40 per cent for
depreciation In addition, the witness estimated the value of the boiler room on
the property, which was of more recent construction, at $5,000 and the value of
the fixtures which would be left by the appellant when vacating at $10,750. Mr.
James G. Watts, an employee of an appraisal company, estimated the
depreciated value of the buildings as approximately $52,000. Of the witnesses
called for the Crown, Mr. F. E. Winslow, the local manager of the Royal Trust
Company and who had occupied that position for something more than thirty
years, considered the market value of the property, including the fixtures, to
have been $98,750 as of the date of the expropriation. He further expressed the
opinion that a purchaser anxious to obtain the property might have paid from
$10,000 to $20,000 in excess of that amount for vacant possession. Mr. F. B. J.
Stephenson, the manager of a company engaged in the real estate business in
Victoria and who had been engaged in that occupation for some thirty years,
valued the property at $102,970, including his own valuation of the fixtures of
$7,500, and expressed the opinion that he could have sold the property for that
amount in February, 1946. Mr. H. C. Holmes who had had a long experience in
real estate in Victoria, arrived at a valuation of $110,000 basing this on what
he considered would be the net rental return from the property, which he
considered would be roughly 4 per cent of the figure mentioned. In addition to
this evidence, it was shown that the property was assessed by the City of
Victoria at $38,870 and that upon the books of the appellant company the land
was carried at $15,805.14 and the building at $30,784.22, a total of
$46,589.36, against which depreciation had been taken over the years in the
amount of $7,728.11, showing a net book value of $38,861.25.
[Page 723]
In the particulars of the appellant's claim to the amount
claimed for the lands and premises there was added an amount for compulsory
dispossession, the total being $132,451. The remainder of the claim consisted
of three items, the first being for surveys, plans and expenditures in
searching for new and suitable premises in the sum of $4,000. Under a general heading
purporting to show actual moving costs, in addition to estimated cartage of
$1,200, there were large items such as a prospective lag in sales in the
appellant's new premises during the first year of $25,000, an estimated loss of
gross income on sales during a period of from five to ten days while moving in
the sum of $5,809.15 and an estimated loss of 10 per cent on five years
advertising in the sum of $2,500. It was shown that in anticipation of the
expropriation the appellant had been able to acquire other premises on the east
side of Government Street within a block of its present location known as the
Five Sisters Block where all of its activities other than the operation of the
printing plant could be properly accommodated, and that nearby it had been able
to acquire a suitable building for the printing establishment. The third item
designated "Increased Costs resulting from Moving" claimed at
$54,004.03 consisted of an estimate of the additional costs of operation in the
new premises for five years.
The learned trial judge, while finding that the appellant
would undoubtedly suffer some loss through the disturbance resulting from
having to move its business, considered that the claims made were excessive. As
to the item of $4,000 for surveys, plans and search for new and suitable
premises, he considered that the claim was not proven, except in respect of
certain items which might be taxable as part of the costs of the proceedings.
As to the claim under the heading "Actual Moving Costs", he considered
the items for loss of fixtures in moving, for a 10 per cent loss on five years
advertising, and the claim for loss of sales during the first year should be
excluded, and that the item of $5,809.15 for loss of gross sales during moving
was excessive. As to the item for loss of fixtures in moving in the amount of
$1,424.53, the claim was abandoned in the argument before this Court and no
evidence was given as to the net loss which would result from the
[Page 724]
anticipated lag in sales or as to the net profit lost by
reason of the anticipated loss of gross income on sales during the period of
moving. As to the claim for increased costs of operation resulting from the
removal, the learned trial judge found that no such claim had been
substantiated and that, while there would be some loss through moving and some
increased cost of operation due to the fact that the printing plant would be
operated in a different building from the retail store and at a distance from
it, against such loss and increased expenses there would be several offsetting
advantages. The evidence established, in his opinion, that the Five Sisters
property was more valuable for the appellant's purposes than its old location
and he thought it probable that the losses from disturbance and the increased
cost of operation would be more than offset by the resulting advantages of
better premises and a better location. While considering that in determining
the compensation he was not required to fix the amount of the defendant's claim
for disturbance under the various headings separately, he said that, if he
were, he could not fairly fix the amount higher than $20,000.
The principle to be followed in determining the compensation
to be paid to an owner whose property is compulsorily taken cannot be more
briefly or clearly expressed than in the judgments of the Judicial Committee in
Cedars Rapids Manufacturing and Power Company v. Lacoste
and in Pastoral Finance Association v. The Minister .
It is the value to the owner as it existed at the date of the taking and not
the value to the taker which is to be determined. That value consists in all
advantages which the land possesses, present or future, and it is their present
value that is to be determined. As stated by Lord Moulton in the Pastoral
Finance case , probably the most practical form in
which the matter can be put is that the owner is entitled to be paid what a
prudent man in his position would have been willing to pay for the land sooner
than fail to obtain it. This formula was applied by Duff J. in Lake Erie and
Northern Railway Company v. Bradford and Galt Golf and Country Club ,
and has been consistently followed in the decisions of this Court. It is a
thing of value capable of being expressed in money for
[Page 725]
the owner to be permitted to continue in possession in the
operation of his business and to avoid the cost of moving and such disruption
as might be caused by having to do so. That value is clearly to be included in
determining what the property is worth to the owner (Commissioners of Inland
Revenue v. Glasgow and South Western Railway Company ;
Home v. Sunderland ). In addition, if a business location
is a particularly favourable one in which to carry on operations for the owner
and another equally satisfactory location is unobtainable, the lands have an
added value to him, the present worth of which should be calculated. In the
present matter, the claimant sought to establish by evidence that the property
expropriated was a more favourable place for the carrying on of its business
than the Five Sisters property situated on the opposite side of Government
about a block away, but there was evidence on the point indicating that the
contrary was the case, which the learned trial judge has seen fit to accept.
The claim that the value of the expropriated premises should be increased on
the ground that it was a more profitable location for the operation of the
appellant's business than other available property failed. Admittedly, moving
costs would be incurred and while no evidence was given as to what loss of
profit would be suffered during the five- or ten-day period of moving, the
evidence merely being that of the estimated loss of gross income on sales
during the period, undoubtedly some loss would be caused. It has been made clear
in the reasons for judgment that a substantial allowance has been made for what
may be called disturbance, in determining the value of the property to the
owner. Whether the learned trial judge intended to indicate by the statement
that, if he were required to fix the amount of the claim for disturbance
separately he could not fairly fix the amount higher than $20,000, this amount
formed part of the value assigned to the property is not clear. I agree that it
was unnecessary to itemize the various amounts the sum of which totalled the
amount awarded. It is clear that consideration has been given to the various
factors which might be relevant in determining the value of this property to
the owner and I think no case has been made for interference with the amount of
the award.
[Page 726]
In the reasons for judgment of the learned trial judge it is
said, inter alia, that the standard by which the right to compensation
for property expropriated is to be measured is prescribed by section 47 of the Exchequer
Court Act. In my opinion, this is error. The section which is one of a
group falling under the heading "Rules for Adjudicating upon Claims"
does nothing more than to declare the date as of which the value of the land
taken is to be determined. It had its origin in sec. 17 of the Government
Railways Act 1881 which read:
The arbitrators, in estimating and awarding the amount to be
paid to any claimant for injury done to any land or property and in estimating
the amount to be paid for lands taken by the Minister under this Act, or taken
by the proper authority under any former Act, shall estimate or assess the
value thereof at the time when the injury complained of was occasioned, and not
the value of the adjoining lands at the time of making their award.
In the Official Arbitrators Act, cap. 40, R.S.C.
1886 (with minor changes which did not affect its meaning), the section was
reenacted as sec. 16. When the latter statute was repealed by the Supreme
and Exchequer Court Acts, cap. 16, Statutes of 1887, these provisions were
reenacted in sec. 32, omitting the words "and not according to the value
of the adjoining lands at the time of making their award", which were
apparently regarded as redundant, and in this form are continued in sec. 47 of
the present Act. The terms of the section, as originally enacted,
indicate clearly the purpose of the section and its meaning has not been
affected, in my opinion, by the omission of the above mentioned words. If I
were of the opinion that the learned trial judge in determining the quantum of
the compensation awarded had considered that this was limited in any manner by
anything in sec. 47, I would consider that the award should be set aside and
that there should be a rehearing, but I think it is clear from the context that
this is not so. While indicating his opinion that sec. 47 limited the amount of
the compensation, the learned trial judge proceeded to say that under its terms
it was the value to the owner which was to be determined and while I disagree
with his opinion that the matter is affected by sec. 47 except in the manner
indicated, in the result it is clear that this has not affected the quantum of
the award.
[Page 727]
As to the claim for an allowance of ten per cent for
compulsory taking, this is not a matter of right (The King v. Larivée) and
can only be justified as a part of the valuation (Cripps on Compensation, 8th
Ed. p. 213) and in the circumstances of this case there should be, in my
opinion, no such addition to the award.
The appeal should be dismissed with costs.
Appeal allowed with costs.
Solicitors for the appellant: Moresby, Farr, Byers
& Moresby.
Solicitors for the respondent: Straith, Pringle,
Ruttan & Gouge.
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