Ottawa Public School Board. v. Campeau, [1961] SCR 633

Supreme Court of Canada

Ottawa P.S. Bd. v. Campeau, [1961] S.C.R. 633

Date: 1961-06-26

The City of Ottawa Public School board (Respondent) Appellant;

and

Robert Campeau (Claimant) Respondent.

The City of Ottawa Public School Board (Respondent) Appellant;

and

Campeau Construction Company Limited (Claimant) Respondent.

1961: February 22; 1961: June 26.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Expropriation—Compensation—Allowance for compulsory taking refused—Allowance of interest—The Schools Administration Act, 1954 (Ont.), c. 86, as amended.

Under The Schools Administration Act the appellant board expropriated two parcels of land, known as the Ryan parcel and the Arkell parcel. By leave of this Court the appellant appealed from two orders of the Court of Appeal varying the awards of the arbitrator fixing the

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amounts of compensation for the lands expropriated. The questions arising for determination in this Court were (1) whether the allowance of ten per cent for compulsory taking allowed by the Court of Appeal, but which had been refused by the arbitrator, should have been made, and (2) whether interest should have been allowed on the awards.

Held: The orders of the Court of Appeal should be set aside and the awards of the arbitrator varied.

Per Curiam: Interest should be allowed and calculated in the case of the Ryan parcel from the date that the respondents became entitled to possession to the date of payment, and in the case of the Arkell parcel, which lands were vacant at the date of expropriation, from the date of registration of a copy of the expropriation resolution to the date of payment. In re Cavanagh and the Canada Atlantic R.W. Co. (1907), 14 O.L.R. 523, referred to.

Per Kerwin C.J. and Taschereau J.: As pointed out in Drew v. The Queen, ante p. 614 where the question of allowance for compulsory taking under the Expropriation Act was considered, mere differences of opinion among experts, concerning the valuation to be put upon lands, was not a sufficient reason to make the allowance. The ordinary rule is that there is no allowance to be made and that there must be special circumstances to justify it. The same rule applied to the present case under The Schools Administration Act. Here there were no special circumstances.

Per Locke and Abbott JJ.: In determining the question of what a person in possession would, as a prudent man, pay for the property rather than be ejected from it, there were to be taken into account, as part of the compensation payable, losses and expenses for the dislocation of any business being carried on by the owner of the property at the time of the expropriation, loss of profit, removal expenses and other matters of a like nature justifying the granting of an allowance for compulsory taking. There were no such matters in the present case nor was there any other circumstance entitling the owner to such an allowance. The amount allowed by the arbitrator represented the full value of the lands to the respondent and the statute under which the expropriation was made did not permit the payment of any further or other amount.

Per Judson J.: The claim for the allowance of ten per cent for compulsory taking should be rejected. Drew v. The Queen, ante p. 614.

APPEALS from two orders of the Court of Appeal for Ontario[1] varying the awards of McDougall C.C.J., fixing the amounts of compensation for lands expropriated. Orders set aside and awards varied.

K.E. Eaton, for the appellant.

J.D. Arnup, Q.C., and J.J. Carthy, for the respondent.

The judgment of the Chief Justice and of Taschereau J. was delivered by

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THE CHIEF JUSTICE:—By leave of this Court the City of Ottawa Public School Board appeals from two orders of (the Court of Appeal for Ontario¹ varying the awards of His Honour Judge McDougall fixing the amounts of compensation for lands expropriated by the appellant under The Schools Administration Act, 1954 (Ont.), c. 86 and amendments. Under the powers conferred by s. 57 of the Act, the appellant expropriated certain parcels of land for school sites, one known as the Ryan parcel, on March 7, 1957, and the other known as the Arkell parcel, on May 16, 1957. The amounts fixed by Judge McDougall are not in dispute and only two questions arise for determination upon these appeals.

The first is as to the allowance of ten per cent for compulsory taking allowed by the Court of Appeal but which had been refused by the arbitrator. Reliance was placed by counsel for the respondent upon the statement in the reasons for judgment of His Honour that “the prices vary so much it is very hard to get any sense of uniformity in the values shown”, but I take this to mean nothing more than what is referred to by Aylesworth J.A., delivering the reasons for judgment of the Court of Appeal, that the arbitrator “was confronted with widely varying opinions, tendered by some four experts, concerning the valuation to be put upon the lands, the basis for such valuations in each case being the value of the lands for development under plans for residential subdivisions. The valuations in some instances as tendered were double those tendered by others”. In the recent appeal to this Court in Drew v. The Queen, ante p. 614, I had occasion to consider the question of this allowance under the Expropriation Act, R.S.C. 1952, c. 106, and I pointed out that mere differences of opinion among the experts is not a sufficient reason; that the ordinary rule is that there is no allowance to be made and that there must be special circumstances in order to justify it. The same rule applies to the present case under The Schools Administration Act. Particularly in view of the facts that Mr. Campeau agreed to purchase the Ryan parcel on May 11, 1956, and that Campeau Construction Company

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Limited, agreed to purchase the Arkell parcel in 1955, I can. find no special circumstances and the ten per cent award by the Court of Appeal is disallowed.

The second point is as to the question of interest. The respondent Robert Campeau had entered into an agreement of purchase of the Ryan parcel from Mr. Frank Ryan (the latter’s wife joining to bar her dower) and had made substantial payments thereon but was not entitled to possession until February 1, 1959. Mr. and Mrs. Ryan were not appellants before the Court of Appeal and are not parties to this appeal. The Court of Appeal allowed no interest down to February 1, 1959, but did allow interest at the rate of five per cent per annum upon the whole amount of the award from that date until payment. As to the Arkell parcel, the Court of Appeal allowed interest at five per cent per annum from the date of registration in the Registry Office of a copy of the resolution of the Board expropriating the land.

Under s. 61 of the Act, where the owner and a board, such as the appellant, are unable to agree on the compensation to be paid to the owner, the amount is to be fixed and determined by the County Court Judge. By s. 62 “the judge shall determine what interest, if any, shall be paid to the owner”. By s. 59 at any time after a board passes a resolution declaring that any land is required for a school site and that immediate possession thereof is required by it, the board, by leave of the County Court Judge and upon payment into the Supreme Court of a sum sufficient, in the opinion of the County Court Judge, to satisfy the compensation, may enter upon and take possession of the land. No such proceedings were taken and we were not informed as to when possession of either parcel was taken. There is no provision in the Act providing for the registration of the resolutions but a copy of the resolution dealing with the Ryan property was registered in the Registry Office on March 13, 1957, and a copy of the resolution relating to the Arkell property was registered on May 21, 1957.

So far as the Ryan property is concerned, it is argued on behalf of the respondent Campeau that since Ryan was in possession at the date of the arbitration and was entitled to remain in possession under his agreement with Campeau until February 1, 1959, it could not be said that Campeau

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was in the same position as an owner who was permitted to remain in possession without payment of rent but with full use of the expropriated property. Aylesworth J.A. puts the matter thus:—“Ryan had remained in possession and had devoted that possession to precisely the same use that those lands were devoted to before expropriation proceedings”. So far as the Arkell property is concerned, apparently nothing was done as to possession up to the time of the hearing of the arbitration, and it is argued on behalf of Campeau Construction Company Limited that in view of the provisions of s. 62 of the Act the Court of Appeal was justified in allowing interest from the date of registration of a copy of the expropriation resolution.

I agree that interest should be allowed. The result of not doing this is set forth by Riddell J. in In re Cavanagh and the Canada Atlantic R.W. Co.[2], in an expropriation case under the Railway Act of Canada. Ryan was entitled to possession of the Ryan parcel down to February 1, 1959, and, as to the Arkell parcel, the lands were vacant at the date of expropriation. The respondents are therefore entitled to interest from the dates mentioned in the order of the Court of Appeal but, in view of the fact that I have disallowed the ten per cent, such interest will be calculated in the case of the Ryan parcel upon the sum of $40,000 from February 1, 1959, to the date of payment. In the case of the Arkell parcel, interest will be calculated on the sum of $21,630 at the rate of five per cent per annum from May 21, 1957, the date of registration of a copy of the expropriation resolution, to the date of payment.

The orders of the Court of Appeal are set aside and the awards of His Honour Judge McDougall are varied in accordance with the foregoing reasons. There will be no costs in this Court or in the Court of Appeal.

The judgment of Locke and Abbott JJ. was delivered by

LOCKE J.:—The lands expropriated in this matter were some 16 acres in extent and, prior to the taking, had been used for farming purposes only. The learned arbitrator, His Honour Judge McDougall, considered that the most profitable use to which this property could be put by the owner

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was for residential purposes and awarded compensation on that footing. There is no appeal from the amount of this award.

The judgment of the Court of Appeal has added ten per cent to these amounts for compulsory taking. As to this, I refer to the judgments to be delivered contemporaneously with this judgment in the appeals in Drew v. The Queen, ante p. 614 by my brother Judson and by myself, dealing with the circumstances in which such an allowance may properly be made.

In the present matter, no business activity of any nature was being carried on by the owner on the property at the time of the expropriation, so that there was no compensation necessary for the dislocation of any business, for loss of profit, removal expenses or other matters of a like nature justifying the granting of any such allowance. In determining the question of what a person in possession would, as a prudent man, pay for the property rather than be ejected from it, there is to be taken into account as part of the compensation payable losses and expenses of this nature, but there were none in the present case nor any other circumstance entitling the owner to such an allowance. The amount allowed by the arbitrator represented the full value of the lands to the respondent and the statute under which the expropriation was made does not permit the payment of any further or other amount.

I agree with the reasons of the Chief Justice dealing with the allowance of interest and with the form of the judgment and the order as to costs proposed by him.

JUDSON J.:—I agree with the reasons of the Chief Justice in these appeals except that I would reject the claim for the allowance of 10 per cent for compulsory taking for the reasons which I gave in Drew v. The Queen, ante p. 614.

Orders of the Court of Appeal set aside and awards varied.

Solicitors for the appellant: Gowling, MacTavish, Osborne & Henderson, Ottawa.

Solicitors for the respondents: Greenberg, Wright & Gorsky, Ottawa.