Kalinin v. Metro. Toronto, [1972] SCR 564

Supreme Court of Canada

Kalinin v. Metro. Toronto, [1972] S.C.R. 564

Date: 1971-12-20

Peter Kalinin (Claimant) Appellant;

and

The Municipality of Metropolitan Toronto (Contestant) Respondent.

1971: October 28; 1971: December 20.

Present: Judson, Ritchie, Hall, Spence and Pigeon JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Expropriation—Compensation—No offer of compensation made by expropriating authority within prescribed time—Additional compensation for increase in market value between date of expropriation and date of arbitration disallowed—Interest payable from date of expropriation, not from date claimant gave up possession of land—The Expropriation Procedures Act, 1962‑63 (Ont.), c. 43, ss. 8(3), 14(1)—The Expropriations Act, 1968-69 (Ont.), c. 36.

[Judson v. Governors of University of Toronto; Dunn v. Governors of University of Toronto, [1972] S.C.R. 553, followed.]

APPEAL from a judgment of the Court of Appeal for Ontario[1], varying in part an award of an arbitrator, whereby compensation was

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awarded to the appellant in respect of certain property expropriated by the respondent municipality. Appeal allowed in part, Judson J. dissenting in part.

James A. Taylor, Q.C., and James Wallace, for the claimant, appellant.

George M. Mace, Q.C., and H.B. Ibsen, for the contestant, respondent.

JUDSON J. (dissenting in part)—The problem of interest in this appeal is the same as in Judson v. The Governors of the University of Toronto; Dunn v. The Governors of the University of Toronto[2]. Again, I agree with and would adopt the majority reasons delivered in the Court of Appeal that interest is payable only from the date when the claimant gave up possession of the land.

The judgment of Ritchie, Hall, Spence and Pigeon JJ. was delivered by

RITCHIE J.—This is an appeal from a judgment of the Court of Appeal for Ontario (Laskin J.A., as he then was, dissenting in part) varying in part the award of the arbitrator, His Honour Judge G.H.F. Moore, made on June 11, 1969, whereby compensation was awarded to the appellant in respect to his property at Scarborough which was expropriated by the Municipality of Metropolitan Toronto on November 9, 1966. The property contained approximately. 873 acres and was situated north of Lake Ontario with an intervening strip approximately 15 feet in width lying between the lakeshore and the claimant’s property and owned by the municipality. On the northerly portion of the land the appellant had erected a residence and had developed the more southerly portion of the property where he had built a small one-storey building referred to in the evidence as a club-house and also a tool shed and boat launching facilities, together with a lighted parking lot.

In making his award, the arbitrator treated the land as consisting of two parcels, the more northerly parcel on which the appellant’s house stood having an area of 75 by 100 feet, and the remain-

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ing parcel which was characterized as “the balance of land”. The arbitrator made an award of $70,089.90 on the following basis:

The arbitrator further directed that this sum should bear interest at 6 per cent per annum from the date of the registration of the plan.

It will be seen that there are many points in common between this appeal and those of Judson v. The Governors of the University of Toronto; Dunn v. The Governors of the University of Toronto[3], which were heard together immediately before it. In all these appeals The Expropriations Act, 1968-69 (Ont.), c. 36, was passed between the time of the registration of the plan and the date of the hearing, and the same questions arise as to the effect of the transitional provisions of that Act read in conjunction with The Expropriation Procedures Act, 1962-63 (Ont.), c. 43, which was in force when the plan was registered.

For the reasons stated by Mr. Justice Schroeder in the decision which he delivered on behalf of the majority of the Court of Appeal, I would disallow the item of $2,600 in respect of “10% allowance for price increase to 1967” and I also agree with Mr. Justice Schroeder that no allowance can be made for the “lights, crane and launching device” in respect of which the learned arbitrator awarded $3,500.

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A part of the item for “boat moving, tool shed, storage $5,719.00” was made up of an allowance of $1,800 for two years’ storage of the appellant’s 25-ton boat then in the course of construction on his land, and I further agree with Mr. Justice Schroeder, for the reasons which he has stated, that this amount should not be allowed.

In dealing with the arbitrator’s finding that his award should bear interest at the rate of 6 per cent calculated from the date of the registration of the plan, Mr. Justice Schroeder applied the provisions of s. 34(1) of The Expropriations Act, 1968-69 and held that:

Section 34(1) of the Act which provides for payment of interest, enacts that interest shall be allowed “at the rate of 6% a year calculated from the date the owner ceases to reside on or make productive use of the lands”. The evidence indicates that at the date of the arbitration the claimant was still in occupation of the property and was still enjoying the same use thereof as he had prior to the expropriation. This point also came up for determination in Re Judson and The Governors of the University of Toronto, supra, and it was there held that interest was not recoverable, notwithstanding the fact that no offer as contemplated by s. 8 of The Expropriation Procedures Act, 1962-63 (Ont.), c. 43, had been made within the time therein prescribed. The view was taken that since no interest was payable to the owner there was nothing on which the provisions of s. 8 could operate. It follows that interest should be payable only from the date on which the respondent gave up possession of the lands. Doubtless the parties can agree upon that date.

As I am of opinion that the appropriate provision with respect to interest is the one which was in force at the date of the registration of the plan, I find myself unable to agree with the view expressed by Mr. Justice Schroeder in the above-quoted paragraph and on the contrary take the view that the applicable provision is s. 8 of The Expropriation Procedures Act, 1962-63, subs. 3 of which reads as follows:

8. (3) If the offer required to be served under subsection 1 is not served within the time limited by subsection 1 or by an order of a judge under

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subsection 2, interest upon any compensation payable to the registered owner shall be calculated from the date of registration of the plan.

I think also that the applicable rate of interest is that which was effective at the date when the compensation was fixed, and I would thus apply the provisions of s. 14(1) of The Expropriation Procedures Act, 1962-63:

14. (1) Subject to subsection 3 of section 8, the tribunal determining compensation may allow interest on the amount of compensation at the rate of 5 per cent per annum from such date as is fixed by the tribunal.

It follows that I would allow interest at the rate of 5 per cent per annum from the date of expropriation on the award as varied by the Court of Appeal except that I think the small items for moving expenses and legal and survey costs should bear interest at 6 per cent from the date of the award.

The appellant asserted a counterclaim alleging that he had spent a vast amount of money to fill in a ravine and install storm sewers in order to create that portion of the property valued by the arbitrator as “balance of land” at $15,000. In this regard I am once again in agreement with Mr. Justice Schroeder who found that the outlay of money made by the appellant in creating these lands was adequately reflected in the $15,000 award made by the arbitrator.

In the result, I would affirm the judgment of the Court of Appeal save only as to the date from which interest should be calculated.

As the appellant has succeeded in part, he should have his costs of the appeal in this Court.

Appeal allowed in part, with costs, JUDSON J. dissenting in part.

Solicitor for the appellant: James A. Taylor, Toronto.

Solicitor for the respondent: A.P.G. Joy, Toronto.