Grand Trunk Railway Co. v. Coupal, (1898) 28 SCR 531

Supreme Court of Canada

The Grand Trunk Railway Company v. Coupal, (1898) 28 SCR 531

Date: 1898-06-14

THE GRAND TRUNK RAILWAY COMPANY OF CANADA

Appellant;

And

AMABLE COUTPAL

Respondent.

1898: Feb 28; 1898: June 14

PRESENT :—Taschereau, Gwynne, Sedgewick, King and Girouard JJ.

ON APPEAL FROM THE COURT OF QUEEN'S BENCH FOR LOWER CANDA (APPEAL SIDE).

Railways—Eminent domain — Expropriation of lands - Arbitration— Evidence—Findings of fact—Duty of Appellate Uourt—51 V. c. 29(D).

On an arbitration in a matter of the expropriation of land under the provisions of " The Railway Act" t the majority of the arbitrators appeared to have made their computation of the amount of the indemnity awarded to the owner if the land by taking an average of the different estimates made on behalf of both parties according to the evidence before them

Held, reversing the decision of the Court of Queen's Bench and restoring the judgment of the Superior Court (Taschereau and Girouard JJ., dissenting), that the award was properly set aside on the appeal to the Superior Court, as the arbitrators appeared to have proceeded upon a wrong principle in the estimation of the indemnity thereby awarded.

APPEAL from the judgment of the Court of Queen's Bench for Lower Canada, appeal side, which restored an award made by the arbitrators in a matter of the expropriation of lands tinder " The Railway Act," and reversed the judgment of the Superior Court, District of Iberville, on an appeal from the award, reducing the amount of the indemnity allowed by the arbitrators.

The majority of the arbitrators awarded the respondent $5,000 as indemnity for a portion of his farm, which the appellant had expropriated under the provisions of "The Railway Act" ([1]) the arbitrator named by the railway company dissenting. On an

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appeal taken by the company to the Superior Court. district of Iberville under the 161st section of " The Railway Act," this award was reformed by reducing the amount of the indemnity to $2,000, but on a further appeal by the present respondent the Court of Queen's Bench, appeal side, reversed the decision of the Superior Court and restored the award of the arbitrators with costs against the company, now appellant.

The property expropriated, about four and a half arpents in extent, consisted chiefly of a hill of sand or gravel covered by a considerable depth of arable soil, situated a few arpents from the respondent's dwelling-house, surrounded by respondent's remaining land, and is said to have been much the best and most profitable part of his farm. The appellant's object in expropriating it appeared to be for the use of the sand and gravel, which went down to a level considerably lower than the remainder of the respondent's property. Appellant offered $661.50 for the property, which was refused, and arbitrators were appointed under the provisions of " The Railway Act," one by each party and a third by the court. Appellant having immediate need of the gravel, took possession of the property, under section 112 of the Railway Act, with-out awaiting the award of the arbitrators.

The arbitrators appeared to be all competent persons. of great experience in matters of expropriation, and in addition to having a number of witnesses examined on each side they personally visited and examined the property in question. The owner's arbitrator came to the conclusion that the indemnity should be $11,500, but afterwards agreed to an award of $5,000 as suggested by the third arbitrator, Mr. J. B. Resther, who had prepared a tabulated statement in support of his conclusions, by which it appeared that he had calculated the average valuation placed on the land by the

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witnesses examined on behalf of the owner, and in the same manner taken the average valuation as shown by the companys witnesses, and the ascertained mean average by adding the sums thus ascertained together and dividing the result in half. At the end of the statement he added the following:——

Accordè $5000 00.

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Etat préparé par le tiers arbitre J. B. Resther an soutien de sa sentence et appuyé sur le témoignage deTélesphore Rielee établissant la valeur marchande en gravier à raison de dixcentins le voyage ou six dollars par cent Voyages. Chaque verge contenant trois voyages, le calcul du tiers arbitre étant fait à raison de dixcentins par verge, et par conséquent endessous de la valeur donnée par Rielle.

J. B. RESTHER,

Tiers arbitre.

On appeal, the Superior Court reduced, the award on the ground that the award was excessive and it was restored by the Court of. Queen's Bench on the ground that it was not contrary to but supported by the evidence, and that owing to the qualifications presumably possessed by arbitrators, their visit to the premises and the means of informing themselves to which the railway Act ([2]) allows them to resort, their award ought not to be disturbed by the courts, except in cases of fraud, partiality or flagrant error.

Lafleur for the appellant. In the Court of Queen's Bench, Mr. Justice Quimet refers to The Montreal and Ottawa Railway Co. v. Bertrand ([3]) Lertioine v. The Mayor etc. of the City of Montreal ([4]), and Mussen et al. v. Canada Atlantic Railway Co. ([5]), decided by the Supreme Court and the Privy Council, but those decisions do not go as far as the learned judges assume. Even where there are no irregularities, negligence nor partiality on the part of the arbitrators there might be error and injustice in their award and it is the duty of the Superior Court, sitting in appeal, to examine whether the arbitrators have rightly appreciated the evidence and to reform their award if it finds that they have not done so. See The Atlantic and North-west Railway Co. v. Wood et, al. ([6]) at page 263. -

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The valuation made by the owner's arbitrator was $11,500 for the 41/2 arpents of farm land taken; this is sufficiently absurd and excessive to show that no credit can be given to his decision, which he after wards consented to reduce by more than half. If we refer to the statement of the third arbitrator Resther, accepted by the owner's arbitrator, we see that he has in no way used his judgment in the appreciation of the evidence. He puts in different columns the witnesses' different valuations of the land, damages and revenues, making the average of such valuation by taking every figure at its full face value without any appreciation whatever as to the ground of valuation of the witnesses. Even if all the figures were correct and they are not it is certainly not a fair and legal mode of appreciating the evidence.

Lafontaine for the respondent. This question is wholly one of fact––the valuation of land. Two of the arbitrators, whose character and qualifications cannot be and are not disputed, have agreed on a valuation and their estimate has been confirmed by five out of the six judges who have already considered it. In such cases, this court has always declined to interfere. See Lemoine v. The. Mayor, etc, of the City of Montreal ([7]) and cases there cited by Taschereau J.

TASCHEREU J.—I would dismiss this appeal. The Court of Queen's Bench rightly held that the arbitrators' award should not be interfered with. The evidence is contradictory. It always is in such cases more so than in others, perhaps. But how can an appellate tribunal be sure that any view it may itself have is more correct than the arbitrators' views who

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have been on the spot, are men of experience, personally cognizant of the subject matter, and who have heard the witnesses viva voce? For my part I would hesitate before holding that they came to a wrong conclusion. Such is the jurisprudence. Lemoine v. The Mayor etc. of the City of Montreal ([8]); Mussen et al. v. Canada Atlantic Railway Company ([9]); Canada Atlantic Railway Company v. Norris ([10]); Atlantic and Norh-West Railway Company v. Wood et al ([11]).

This is nothing else hut an appeal upon a question of fact, and we could not allow the appeal without ignoring the principles said down by the Privy Council on the matter.

GWYNNE J.–I agree that the appeal should be allowed, for the reasons stated in the judgment of His Lordship Mr. Justice Sedgewick.

SEDGEWICK J.—I am of opinion that the judgment appealed from must be reversed and the judgment of the Superior Court restored.

The award of the arbitrators was arrived at by a method of computation which cannot under any circumstances be supported. The arbitrator, Resther, has shown beyond any question how the amount was arrived at. He put forward four different ways or methods by which a conclusion might be arrived at as to the amount to which the claimant was entitled. First, by taking the average estimation of the lands and adding the damages making a total of $3,436.06, and if that were a correct method that should have been the amount of the award. Secondly, he took the average of the damages to the whole farm, that is,

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what the farm was worth before the expropriation and what it was worth after the expropriation, being $2,957.44 to which he adds $773 additional. That was another way suggested for getting to a right conclusion. Thirdly, he takes the average of the value of the land expropriated calculated on the revenue thereof per arpent, which he puts at $2,046 per arpent, making upon that basis the damages amount to $9,980.500. Finally, he estimates the alleged value of the gravel in the land expropriated, and upon that basis arrives at the sum of $5610.50. He then takes the four different amounts arrived at as above and makes an average of them which gives the sum of $5,689.40 and he determines upon the amount of the award upon the result of that average, less odd figures. I am at a loss to see how an award arrived at by such a method so absurd and contradictory, can be supported. In fact it seems to be admitted on both sides and by the course below that the award was an irregular one. His second method of computation would seem to approximate nearer to legal principles, but even that method was clearly vicious, because it was attended by a process of averages, giving to the evidence of each witness on each side the same value, adding up the amounts respectively sworn to by them all and arriving at the amount by dividing the total by the number of the witnesses. I cannot conceive how any award come to by any such process can be supported. The award therefore was necessarily set aside, and it thereupon became the duty of the court herein the appeal under section 161, sub sec. 2, of the Railway Act to decide the amount of damages upon the evidence taken before the arbitrators as in the case of original jurisdiction. Now, I entirely agree with what the learned Mr. Justice Ouimet in the Court of Queen's Bench says in regard to the respect which is to

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be paid to the award under the Railway Act following as he does what had been previously laid down in the case Mussen v. The Ganada Atlantic Railway Company before the Judicial Committee of the Privy Council ([12]) but it appears to me that the defects in this award are infinitely more gross than in any of the cases to which our attention has been drawn. The Superior Court having properly, in my view, set aside the award were called upon under the statute to properly perform the duties which the arbitrators had most signally failed to perform, and to decide from the evidence taken before the arbitrators what in their judgment was fair and right. That court has performed its duty in my view most liberally for the claimant, and its findings should not I think have been interfered with by the appellate tribunal.

I am of the opinion that the appeal should be allowed.

KING J. concurred in the opinion expressed by His Lordship Mr. Justice Sedgewick.

GIROUARD J.—I do not feel disposed to interfere with the award of the arbitrators No charge of partiality, dishonesty or misconduct is made against them or either of them. Their proceedings are regular. The arbitrator, Resther, perhaps, proceeded upon an erroneous principle of valuation when he arrived at his conclusion, although I am not prepared to say so; he took the average of the figures sworn to by all the witnesses, pro and con; but this proceeding cannot be fatal to the award, if not clearly against the evidence. In the first place, I do not consider that the evidence shows that that conclusion was clearly wrong. In

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the second place the arbitrators visited the premises and as they were experts, they might have acquired and undoubtedly did acquire, the knowledge of certain material facts which are not before us and which permitted them to control the figures of the witnesses and decide that their average would be a fair indemnity to the proprietor, and for that reason the award of the arbitrators should have more force than the verdict of a jury. In Venning v. Steadman ([13]) this court held that it would not set aside a verdict and grant a new trial upon the ground of excessive damages except when the damages assessed are "unreasonably large" or "clearly too large." According to the rule laid down also by this court in several cases, the appellate courts should not interfere with the award of arbitrators, unless the sum awarded is so grossly and scandalously exaggerated as to shock one's sense of justice. The fact that it has received the unanimous sanction of five judges sitting in appeal in high authority that this is not one of those cases; and as I appreciate the evidence, I entirely agree with them. There is evidence that the conclusion arrived at by the majority of the arbitrators was not clearly wrong a result which is fully demonstrated in the elaborate review of the facts made by Mr. Justice Ouimet. I am therefore of opinion that the case should not be referred to a new board of arbitrators, but that the award appealed from should be maintained. See Benning et at. v. The Atlantic and North- West Railway Company ([14]); The Queen v. Charland ([15]); The Queen v. Paradis and The Queen v. Beaulieu ([16]); Lemoine v. The Mayor etc. of the City of Montreal ([17]) and authorities therein quoted by Mr. Justice Taschereau. See also

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Oldfield v. Price ([18]); Russell. 7th ed. 307; Rolland v. Cassidy ([19]); Re Collins and The Water Commissioners of the City of Ottawa ([20]); In re Kirkleatham Local Board and Stockton      and Middlesborough Water Board ([21]).

The appeal should, in my opinion, be dismissed with costs.

Appeal allowed with costs.

Solicitor for the appellant: E. Z. Paradis.

Solicitors for the respondennt Béïque, Lafontaiaine, Turgeon & Robertson.