Date: 19980703
Docket: T-1452-95
Ottawa, Ontario, July 3, 1998
Present: The Honourable Mr. Justice Pinard
Between:
| JACQUES THIBAULT, labourer, domiciled at 482, 7e rue ouest, Amos, Quebec J9T 1Y4 |
|
Plaintiff
- and -
| CANADIAN NATIONAL RAILWAY COMPANY, a company incorporated under R.S.C., c. C-19, having an office at 935, rue de la Gauchetière ouest, Montréal, Quebec H3B 2M9 |
|
Defendant
JUDGMENT
The plaintiff's action is allowed in the amount of $4,500, with no interest or costs.
YVON PINARD
JUGE
Certified true translation
Bernard Olivier
Date: 19980703
Docket: T-1452-95
Between:
| JACQUES THIBAULT, labourer, domiciled at 482, 7e rue ouest, Amos, Quebec J9T 1Y4 |
|
Plaintiff
- and -
| CANADIAN NATIONAL RAILWAY COMPANY, a company incorporated under R.S.C., c. C-19, having an office at 935, rue de la Gauchetière ouest, Montréal, Quebec H3B 2M9 |
|
Defendant
REASONS FOR JUDGMENT
PINARD J.:
[1] The plaintiff, a labourer, is claiming compensation from the defendant in the amount of $44,930.95, with interest and costs, for the expropriation of part of his land by the defendant.
Les faits
[2] The plaintiff is the owner of a piece of land having an area of 98 acres, in Figuery township, in the electoral disrict of Abitibi-Ouest, which is described as follows:
| [TRANSLATION] The parts of lot number thirteen (13) situated to the South and North of the railway, concession ten (X), of the original survey of the township of Figuery, corresponding to lot numbers thirteen-A (13-A), thirteen-B (13-B), thirteen-C (13-C) and thirteen-D (13-D), concession ten (X), of the official cadaster of the township of Figuery. |
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[3] On December 1, 1982, the defendant, which wished to expand its railway right-of-way, offered the plaintiff $4,500 for the purchase of two parcels of this land, which parcels are described as follows:
| [TRANSLATION] Two parcels of land measuring fifty feet (50.0 ft., or 15.24 m.) wide, situated in the Municipality of the Town of Amos, being part of the official cadaster of the township of Figuery, Registry Division of Abitibi, Province of Quebec, and being more particularly described as follows: |
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| A certain strip of land, in the shape of a parallelogram, measuring fifty feet (50.0 ft., or 15,24 m.) wide, known and designated as being part of original lot number THIRTEEN C (P. Lot 13-C), Concession X, of the said official cadaster; bordered on the northeast by a part of the said original lot number 13-C, on the east by a part of original lot number 13-D (Parcel II hereinafter described), on the southwest by a part of original lot number 75 (railway) and on the west by a part of original lot number 12-B. |
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| This strip of land measures four hundred seventy-four and six-tenths feet (474.6 ft., or 144.66 m.) on the northeast and southwest and fifty-five and three-tenths feet (55.3 ft., or 16.86 m.) on the east and west, and contains an area of twenty-three thousand seven hundred twenty-nine square feet by English measurement (23,729 ft.2, or 2,204.5 m.2). |
|
| A certain strip of land, in the shape of a parallelogram, measuring fifty feet (50.0 ft., or 15,24 m.) wide, known and designated as being part of original lot number THIRTEEN D (P. Lot 13-D), Concession X, of the said official cadaster; bordered on the northeast by a part of the said original lot number 13-D, on the east by a part of original lot number 14-B, on the southwest by a part of original lot number 75 (railway) and on the west by a part of original lot number 13-C (Parcel I hereinbefore described). |
|
| This strip of land measures four hundred seventy-four and six-tenths feet (474.6 ft., or 144.66 m.) on the northeast and southwest and fifty-five and three-tenths feet (55.3 ft., or 16.86 m.) on the east and west, and contains an area of twenty-three thousand seven hundred twenty-nine square feet by English measurement (23,729 ft.2, or 2,204.5 m.2). |
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| The two parcels of land (I and II) hereinbefore described contain a total area of forty-seven thousand four hundred fifty-eight square feet, English measurement. (47,458 ft.2, or 4,409.0 m.2). |
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[4] The date indicated for taking possession of these two parcels of land was December 22, 1982.
[5] Since the plaintiff had not responded to this offer before December 8, 1982, the date specified, the defendant proceeded with the expropriation by filing a plan of expropriation, no. 82-24-1, in the Registry Division of Abitibi, as number 207331. That plan defined a strip with an area of 47,458 ft.2 (or 4,409.0 m.2) forming part of lots 13-C and 13-D, described supra, belonging to the plaintiff.
[6] Subsequently, on February 18, 1983, the defendant served a "Notice to submit claims" on the plaintiff in accordance with section 26 of the Expropriation Act, R.S.C. 1970, c. E-191 (the "Act").
[7] It was not until August 19, 1994, over ten years after that Notice was served, that the defendant served an expert opinion on the defendant setting out the exact amount of his claim. The plaintiff instituted this action on July 24, 1995, after the defendant had reiterated its original offer to pay compensation in the amount of $4,500, by letter dated July 5, 1995.
The issue
[8] In this case, the issue is whether the $4,500 offered is sufficient to compensate for the loss suffered by the plaintiff as a result of the expropriation in question, and if not, what compensation the plaintiff is entitled to.
Analysis
[9] The Act does not specify the criteria that are to apply in determining this sort of compensation. It addresses this question only generally, in section 23:
| 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 stands in the stead of such land or property; and any claim to or encumbrance upon such land or property shall, as respects Her Majesty, be converted into a claim to such compensation money or to a proportionate amount thereof, and is void as respects any land or property so acquired or taken, which, by the fact of the taking possession thereof, or the filing of the plan and description, as the case may be, becomes and is absolutely vested in Her Majesty.
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23. L'indemnité pécuniaire convenue ou adjugée pour tout terrain ou bien acquis ou exproprié pour la construction d'ouvrages publics, ou défavorablement atteint par ces ouvrages, tient lieu de ce terrain ou bien; toute réclamation ou charge sur ce terrain ou bien est convertie, à l'égard de Sa Majesté, en une réclamation contre cette indemnité pécuniaire, ou contre une part proportionnelle de cette indemnité; elle est nulle à l'égard du terrain ou immeuble ainsi acquis ou exproprié, lequel, par le fait de la prise de possession du terrain ou du dépôt du plan et de la description, selon le cas, devient la propriété absolue de Sa Majesté.
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[10] We must therefore refer to the criteria that have been stated generally in the case law, holding that the principle of equivalency is the basis of the general theory of compensation, and that compensation is calculated on the basis of the "value to the owner" (see Eric C.E. Todd, The Law of Expropriation and Compensation in Canada, 2nd ed., Toronto, Carswell, 1992, at pp. 109-110).
[11] In the instant case, in addition to claiming $986.45 for the strip of land expropriated having an area of 1.09 acres (hereinafter the expropriated strip), the plaintiff is also claiming $42,444.50 for adverse effects on a residual portion of land having an area of 46.9 acres (hereinafter the residual portion). In addition to these amounts, the plaintiff is claiming $1,500 for "hardship and inconvenience", and is claiming interest and costs.
[12] The defendant's railway right-of-way, which was expanded as a result of the expropriation in question, has crossed the plaintiff's land since 1912. Both the expropriated strip and the adjacent residual portion are located to the north of the railway land, with the expropriated strip being located entirely between the right-of-way and the residual portion. The plaintiff is claiming nothing for the rest of the land situated to the south of the railway right-of-way.
[13] The $986.45 claimed as compensation for expropriation of the strip in question is not in dispute, as that figure corresponds to a market value of $905 per acre.
[14] The plaintiff is also claiming the full market value of $905 per acre for the residual portion, which he considers to have become an enclave as a result of the expropriation of the strip in question. At trial, counsel for the plaintiff even offered to convey title to that residual portion to the defendant, as consideration. Here, it is important to point out that the certified appraiser, Jean-Pierre Forest, who testified as an expert for the plaintiff, made that appraisal on the basis of a strictly industrial use for the residual portion, which is situated near industries that include the Donahue pulp and paper plant, which had been recently built at the time of the expropriation.
[15] The defendant argued that this residual portion did not become an enclave as a result of the expropriation of December 22, 1982, since the plaintiff enjoyed a crossing by tolerance that gave him access to the highway.
[16] In fact, the evidence established that the defendant has constructed parallel access roads on the north and south sides of its railway right-of-way, that are suitable for motor vehicles and are accessible to the plaintiff and his neighbours. The roadway on the north side, which is gravel, crosses the plaintiff's land and leads, some 4,000 feet to the west, to the public roadway known as "Route La Ferme", where there is a level crossing. Halfway down the gravel road, some 2,000 feet to the west, where the four railway tracks are reduced to one, the defendant has constructed a crossing over its railway right-of-way that connects the access road on the north side to the one on the south. The road on the south is not gravel, and has rather been constructed as a wide farm track accessible to the adjoining property owners, including the plaintiff.
[17] An enclave does not exist when the owner of the land has a crossing by tolerance providing access to a highway; "highway" does not necessarily mean a municipal or provincial roadway, but rather any crossing leading to a public roadway. In Whitworth v. Martin, [1995] R.J.Q. (C.A.) 2388, at page 2392, Mr. Justice Baudoin, for the Quebec Court of Appeal, wrote:
| [TRANSLATION] The expression "public road"* in article 540 C.C. or 997 C.C.Q. in fact does not mean only a "public roadway" in the strict sense, that is, a municipal, provincial or other roadway; rather, it means any right-of-way* leading to a public roadway. The expression "public" refers not to ownership of the crossing, but to the right to use it. Because a private roadway such as the "Upper Road" is used by the public, it must be characterized as a "public road" in determining the respondent's rights.6. |
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| 6 Bouchard v. Lacoursière (1934), 57 B.R. 466; Simard v. Young, [1949] C.S. 167; Voyer v. Dumas, [1950] C.S. 383. See also: Julien v. Côté, [1959] B.R. 836; Tremblay v. Bouffard, [1975] R.L. 10 (P.C.). |
|
| * [In the Railway Act, "voie publique" is "¡ighway"; in the C.C.Q. it is "public road". In the Railway Act , "passage" is "crossing"; in the C.C.Q., it is "right-of-way" - Tr.] |
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[18] As well, in Patry v. Merleau Lill, [1990] R.D.I. 1 (C.A.), at page 3, Mr. Justice Vallerand, of the Quebec Court of Appeal, stated:
| [TRANSLATION] ... Whether the issue involves determining whether there is an enclave or, in the event that there is an enclave, identifying the servient land, the convenience for the dominant land is not a factor to be considered.2 Is there an enclave? No, if there is reasonable access, whether legal or by tolerance, to the public roadway; ... |
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| In 1983 the Merleau heirs undeniably had access to a road by tolerance. That is sufficient to rule out an enclave.5 . . . |
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| 2 Brouillard v. Villiard, [1951] B.R. 288, 295. |
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| 5 See supra, note 3, 736 et seq. [Ouimet v. Ouimet, [1963] B.R. 735.] |
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[19] It therefore appears that the residual land is not an enclave, since the plaintiff has been provided by the defendant with a crossing by tolerance, without the plaintiff even having to request it. In fact, there is no evidence that the plaintiff has ever formally exercised his right to claim a suitable crossing under sections 212 and 213 of the Railway Act, R.S.C., c. R-2,2 the former provisions equivalent to section 102 of the Canada Transport Act, S.C. 1996, c. C-10.3
[20] If, before the expropriation, the plaintiff enjoyed what seems to have been another crossing by tolerance allowing him to cross the one railway track then in existence from the southern part directly to the northern part of his land, a crossing that is useful in operating his "portable sawmill", the by-pass road 2,000 feet west of his land seems to me now to be a suitable crossing for the same purposes.
[21] I found the plaintiff's testimony to be generally vague and imprecise with respect to this small-scale industrial use of the residual portion, as the plaintiff has not kept books and produced no serious evidence attesting to the income generated by the business. Given that the plaintiff, a labourer, has never claimed any other suitable crossing from the defendant to enable him to use his land, the vagueness on these points raise doubt in my mind as to the real reasons why he completely ceased this secondary operation at the end of 1983. Certainly, he might have found the direct crossing before the expropriation very convenient for transporting lumber, but the inconvenience he has experienced from using the by-pass road after the expropriation would not appear in any way to justify compensation amounting to what the plaintiff considers to be the full market value of the residual land. In view of the recognized industrial use of the residual land, I am rather of the opinion that the gravel access road north of the railway right-of-way has increased its market value, by providing more convenient access to a public roadway than what was there before the expropriation, when in fact it was necessary to go over the railway right-of-way and then use what was no more than a track, on the south, on the rest of the plaintiff's land.
[22] In the circumstances, therefore, I find that the plaintiff is entitled instead to damages for the hardship and inconvenience caused to him primarily by a longer, although more suitable, access route to his residual land. On this point, I accept the detailed valuation of the increased travelling costs and time lost prepared by the certified appraiser, Brian L'archevêque, the defendant's expert witness, and his valuation of the hardship and inconvenience caused by signing the deed at the notary's office, for a total of $2,000. Since this expert also assigned a value of $1,100 to the expropriated strip, I ultimately concur in his overall valuation of $3,100 for the compensation owing to the plaintiff on December 22, 1982. Accordingly, the higher amount that the defendant offered as a precaution, $4,500, is entirely sufficient, and it is that amount that must be considered to be owing to the plaintiff.
[23] With respect to the question of interest and costs, the relevant provisions of the Act read as follows:
| 32. (1) Interest at the rate of five per cent per annum may be allowed on such compensation money from the time when the land or property was acquired, taken or injuriously affected to the date when judgment is given; but no person to whom has been tendered a sum equal to or greater than the amount to which the Court finds him entitled shall be allowed any interest on such compensation money for any time subsequent to the date of such tender.
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32. (1) Un intérêt, au taux de cinq pour cent par année, peut être alloué sur l'indemnité pécuniaire, depuis le jour où le terrain ou le bien a été acquis, exproprié ou défavorablement atteint jusqu'au jour du prononcé du jugement : mais il n'est alloué à la personne à laquelle a été offerte une somme de deniers, égale ou supérieure au montant que la cour juge lui être dû, aucun intérêt sur l'indemnité pécuniaire pour le temps écoulé postérieurement à la date de cette offre.
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| (2) Where the Court is of opinion that the delay in the final determination of any such matter is attributable in whole or in part to any person entitled to such compensation money or any part thereof, or that such person has not, upon demand made therefor, furnished to the Minister within a reasonable time a true statement of the particulars of his claim required to be furnished as hereinbefore provided, the Court may, for the whole or any portion of the time for which he would otherwise be entitled to interest, refuse to allow him interest, or it may allow the same at such rate less than five per cent per annum as to the Court appears just.
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(2) Si la cour est d'avis que le retard apporté dans la détermination finale de toute semblable question est imputable, en totalité ou en partie, à quelque personne qui a droit à cette indemnité pécuniaire, totale ou partielle, ou que cette personne n'a point, après la demande à elle faite, fourni au Ministre, dans un délai raisonnable, un état exact contenant les détails de sa réclamation, ainsi que les dispositions qui précèdent l'exigent, la cour peut, pour la totalité ou partie du temps à l'égard duquel cette personne aurait par ailleurs eu droit à l'intérêt, refuser de lui allouer tout intérêt, ou allouer l'intérêt au taux inférieur à cinq pour cent par année qu'elle trouve juste.
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| 33. The costs of and incident to any proceedings hereunder shall be in the discretion of the Court, which may direct that the whole or any part thereof shall be paid by the Crown or by any party to such proceeding.
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33. Les frais de toutes procédures prévues aux présentes ou occasionnés par ces procédures sont laissés à la discrétion de la cour, laquelle peut ordonner que la totalité ou partie en soit payée par la Couronne ou par quelque partie à ces procédures.
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[24] In the instant case, I am of the opinion that no interest and no costs should be awarded to the plaintiff, who was offered a sum of money at the time of the expropriation equal to the amount that the Court today finds to be owing to him. This is also the necessary consequence of the fact that the plaintiff waited in excess of ten years after service of the Notice given under section 26 of the Act before providing the defendant with an exact statement setting out the details of his claim, which is entirely unreasonable.
[25] In accordance with the reasons, the $4,500 offered by the defendant to the plaintiff being found to be reasonable and sufficient, the plaintiff's action is allowed in that amount, with no interest or costs.
YVON PINARD
JUGE
Ottawa, Ontario
July 3, 1998
Certified true translation
Bernard Olivier
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| COURT FILE NO.: T-1452-95 |
| STYLE OF CAUSE: Jacques Thibault v. |
| Canadian National Railway Company |
| PLACE OF HEARING: Montréal, Quebec |
| DATE OF HEARING: June 17, 1998 |
REASONS FOR JUDGMENT OF PINARD J.
APPEARANCES:
| Georges Cliche FOR THE PLAINTIFF |
| Stéphane Létourneau FOR THE DEFENDANT |
SOLICITORS OF RECORD:
| Cliche, Lortie et Ladouceur FOR THE PLAINTIFF |
Val-d'Or, Quebec
| Martineau Walker FOR THE DEFENDANT |
Montréal, Quebec
__________________
1 In written argument, the parties expressly acknowledged that this case is governed by that specific Act, and not by the Expropriation Act , R.S.C. 1985, c. E-21.
2
| 212. (1) Every company shall make crossings for persons across whose lands the railway is carried, convenient and proper for the crossing of the railway for farm purposes. |
212. (1) Chaque compagnie doit faire, sur les terres que traverse son chemin de fer, à l'usage des propriétaires de ces terres, des passages croisant la voie ferrée, convenables et commodes pour les besoins de la ferme. |
| 213. (1) The Commission may, upon the application of any landowner, order the company to provide and construct a suitable farm crossing across the railway, wherever in any case the Commission deems it necessary for the proper enjoyment of his land, and safe in the public interest. |
213. (1) La Commission peut, sur demande de tout propriétaire foncier, ordonner à la compagnie de fournir et construire un bon passage de ferme en travers du chemin de fer, chaque fois que, dans un cas particulier, la Commission juge que ce passage offre toute sûreté au public et est nécessaire afin que le propriétaire jouisse de sa terre. |
3
| 102. If an owner's land is divided as a result of the construction of a railway line, the railway company shall, at the owner's request, construct a suitable crossing for the owner's enjoyment of the land. |
102. La compagnie de chemin de fer qui fait passer une ligne à travers la terre d'un propriétaire doit, sur demande de celui-ci, construire un passage convenable qui lui assure la jouissance de sa terre. |
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