Supreme Court of Canada
Florence Realty Company Limited et al. v. The Queen,
[1968] S.C.R. 42
Date: 1967-10-03
Florence Realty
Company Limited and Florence Paper Company Limited Appellants;
and
Her Majesty the
Queen Respondent.
1967: June 16, 19, 20; 1967: October 3.
Present: Abbott, Martland, Judson, Ritchie
and Spence JJ.
ON APPEAL FROM THE EXCHEQUER COURT OF CANADA
Crown—Agreement to pay compensation for
closing railway siding—Calculation of amount of compensation—Whether income tax
should be deducted—Land offered by Crown for relocation at low price—Whether
Crown estopped from denying need for relocation—Exchequer Court Act, R.S.C.
1952, c. 98, ss. 18(1)(g), 47(b).
Pursuant to an order of the Board of
Transport Commissioners, the appellant company, which carried on a used paper
business in a building in the City of Ottawa leased from a related company, the
[Page 43]
other appellant, lost the use of a private
railway siding which it had under an agreement with the CPU. The order to
abandon the siding had been obtained by the National Capital Commission as part
of its program of redevelopment of the City of Ottawa. It was agreed between
the National Capital Commission and the appellant that compensation for the
loss of the siding would be fixed by the Exchequer Court of Canada pursuant to
s. 18(1)(g) of the Exchequer Court Act, R.S.C. 1952,
c. 98. If the Court determined that the appellant was required to relocate its
business as a result of the removal of the railway services, the compensation
to be paid would be an amount which the appellant, as a prudent owner, would
pay rather than be forced to relocate. On the other hand, if the Court
determined that the appellant was not required to relocate its business, then
the compensation would be an amount which a prudent owner would pay rather than
lose such rail services, it being agreed that the appellant would have had the
use of the siding for a further ten years. The National Capital Commission also
offered the appellant land in an industrial park it owned at 20 per cent less
than the market price. The appellant carried on business without the siding at
the old location for several months, but eventually took advantage of the offer
of land and relocated its business.
The Exchequer Court, which was seized of the
matter by a petition of right, found that if the appellant were forced to
relocate, the prudent owner would have paid a sum of $152,802.63 rather than be
forced to relocate and that, on the other hand, if it were not forced to
relocate then the prudent man would have paid $91,300 rather than lose the rail
services. It also found that if the appellant had closed down its business
entirely its loss would have been $225,000. It also found that it was not
physically impossible to carry on the enterprise without the railway siding
services and concluded that the prudent owner would take the least costly of
these three alternatives. He therefore fixed the compensation at $91,300, after
having deducted a sum for income tax. The company appealed to this Court.
Held: The
appeal should be dismissed.
In fixing the amount of compensation, the
trial judge used a sound method and applied the proper principles. Moreover,
the trial judge was right to reduce the compensation by an amount to cover the
income tax. The prudent owner would calculate the income tax when determining
the sum he would be prepared to pay rather than lose the railway siding
services.
As found by the trial judge, the Crown was
not estopped from alleging that the appellant was not required to relocate simply
because it had offered land to relocate. This was not a case in which the 10
per cent allowance should be made. Section 47(b) of the Exchequer
Court Act was a complete answer to the claim for interest.
Couronne—Promesse de payer une indemnité
pour la fermeture d’une ligne de chemin de’ fer de service—Calcul du montant de
l’indemnité—Doit-on déduire un montant pour l’impôt sur le revenu—Terrain
offert par la Couronne à un bas prix pour déménager l’entreprise—La Couronne
est-ellé empêchée de nier le besoin d’un déménagement—Loi sur la Cour de
l’Échiquier, S.R.C. 1052, c. 98, arts. 18(1)(g), 47(b).
[Page 44]
Selon les termes d’une ordonnance de la
Commission des Transports du Canada, la compagnie appelante, qui exploitait une
entreprise de papier de seconde main dans un édifice à Ottawa qu’elle louait
d’une compagnie parente, l’autre appelante, a perdu l’usage d’une ligne de
chemin de fer de service qui desservait son entreprise. Cette ordonnance avait
été obtenue par la Commission de la Capitale Nationale dans les termes de son
programme de développement de la cité d’Ottawa. Il fut entendu entre la
Commission de la Capitale Nationale et l’appelante que l’indemnité pour la
perte du chemin de fer serait fixée par la Cour de l’Echiquier du Canada en
vertu de l’art. 18(1)(g) de la Loi sur la Cour de l’Échiquier,
S.R.C. 1952, c. 98. Si la Cour en venait à la conclusion que
l’appelante serait obligée de déménager son entreprise à la suite de la perte
du chemin de fer, l’indemnité à être payée serait un montant que l’appelante,
comme propriétaire prudent, serait prête à payer plutôt que d’être forcée de
déménager. D’un autre côté, si la Cour en venait à la conclusion que
l’appelante ne serait pas obligée de déménager son entreprise, l’indemnité dans
ce cas serait un montant qu’un propriétaire prudent serait prêt à payer plutôt
que de perdre la ligne de chemin de fer de service. La Couronne et l’appelante
s’accordent pour dire que l’appelante aurait eu l’usage du chemin de fer pour
un autre dix ans. La Commission de la Capitale Nationale a aussi offert à
l’appelante un terrain situé dans un parc industriel à un prix de
20 pour-cent de moins que sa valeur marchande. L’appelante a continué son
entreprise pendant quelques mois sans le chemin de fer à son ancien endroit, mais
éventuellement elle a accepté l’offre du terrain et a déménagé son entreprise.
La Cour de l’Échiquier, qui a été saisie de
cette affaire par une pétition de droit, a jugé que si l’appelante était
obligée de déménager, le propriétaire prudent aurait payé une somme de
$152,802.63 plutôt que d’être forcé de déménager et que, d’un autre côté, si
l’appelante n’était pas forcée de déménager, l’homme prudent alors aurait payé
$91,300 plutôt que de perdre le chemin de fer. Elle a aussi jugé que si
l’appelante avait mis fin à son entreprise elle aurait accusé une perte de
$225,000. Elle a de plus jugé qu’il n’était pas physiquement impossible de
continuer l’entreprise sans le chemin de fer, et a conclu que le propriétaire
prudent aurait opté pour la moins onéreuse de ces trois alternatives. Il a donc
fixé l’indemnité à $91,300, après avoir déduit un montant pour l’impôt sur le
revenu. La compagnie en appela devant cette Cour.
Arrêt: L’appel
doit être rejeté.
Dans la détermination du montant de
l’indemnité, le juge au procès s’est servi d’une bonne méthode et a appliqué
les principes appropriés. De plus, le juge a eu raison de réduire, l’indemnité
par un montant représentant l’impôt sur le revenu. Le propriétaire prudent
aurait calculé l’impôt sur le revenu en établissant le montant qu’il serait
prêt à payer plutôt que de perdre le chemin de fer.
Tel que jugé en première instance, la Couronne
n’était pas empêchée d’alléguer que l’appelante n’était pas obligée de
déménager son entreprise pour la seule raison que la Couronne avait offert un
terrain dans ce but. Il ne s’agit pas ici d’un cas où une indemnité de 10
pour-cent doit être ajoutée. L’article 47(b) de la Loi sur la Cour de
l’Échiquier est une réponse complète à la réclamation des intérêts.
[Page 45]
APPEL d’un jugement du Juge Gibson de la Cour
de l’Échiquier du Canada, sur
une pétition de droit. Appel rejeté.
APPEAL from a judgment of Gibson J. of the
Exchequer Court of Canada1, on a petition of right. Appeal
dismissed.
B.J. MacKinnon, Q.C., and W.I.C. Binnie,
for the appellants.
Keith E. Eaton, for the respondent.
The judgment of the Court was delivered by
SPENCE J.:—This is an appeal from the judgment
of Gibson J. in the Exchequer Court of Canada1 by which he fixed the
compensation to be paid to the appellants at the sum of $91,300 and provided
that the appellants should have their costs of the action up to
February 21, 1966, on which date the respondent filed a Confession of
Judgment in the amount of $100,000 pursuant to rule 104 of the Exchequer Court
Rules, with a set-off in favour of the respondent of the costs of action
subsequent to the said February 21, 1966.
The litigation in the Exchequer Court of Canada
arose under the following circumstances.
The (suppliants) appellants Florence Realty
Company Limited for very many years owned a building in the City of Ottawa with
frontages on Boteler, Bolton and Dalhousie Streets, and had leased that
building to its related company the Florence Paper Company Limited for the
purpose of carrying on a used paper business. From 1918 on, the Florence Paper
Company had leased from the Canadian Pacific Railway Company certain other
lands contiguous to the said building which the company said was essential to
its business operations, and the paper company was also serviced by a private
railway siding under an agreement in writing with the C.P.R.
As an integral part of its programme of
development of the Lower Town Ottawa area, and particularly the construction of
the MacDonald-Cartier Bridge connecting
[Page 46]
Ottawa with Hull, the National Capital
Commission and the C.P.R. determined that the railway siding should be
abandoned. That abandonment could only be effected if the Board of Transport
Commissioners gave an order permitting the same. The National Capital
Commission obtained the consent of the suppliants-appellants to such order of
the Board of Transport Commissioners by entering into an agreement with the
suppliants-appellants and with others whose businesses would cease to have
railway siding and rail service by reason of the abandonment.
The agreement between the appellants and the
N.C.C. dated May 5, 1964, was produced at trial as exhibit P-29. By that
agreement, the parties agreed upon principles to be applied in awarding the
compensation for the loss of the railway siding services in the following
terms:
1. For the purposes of this agreement the
Commission acknowledges that but for the Memorandum of Understanding between
the Commission, the Canadian Pacific Railway Company and the Canadian National
Railway Company dated the 17th day of October, A.D. 1963, the siding agreements
or leases which the Company has with the Canadian Pacific Railway would have
been renewed from time to time and the Canadian Pacific Railway Company and/or
the National Capital Commission would not have made an application to the Board
of Transport Commissioners to abandon the operation of that part of its Sussex
Street Subdivision from mileage 1.2 to the end of the Subdivision at mileage
6.7, and/or for abandonment of railway sidings used by the Company in
connection therewith for ten years from the 24th day of March, A.D. 1964.
2. The Commission on behalf of the Crown
and the Company and the Landlord agree that the amount, if any, to be paid to
the Company pursuant to the principles hereinafter mentioned shall be
determined by the Exchequer Court of Canada pursuant to paragraph (g)
of sub-section (1) of Section 18 of the Exchequer Court Act.
3: In the event that the Court determines
that the Company is required to relocate its business as a result of the
removal of the railway services, including the cancellation of the lease of
land, if any, and other agreements with the Canadian Pacific Railway Company
relating to railway services on the Sussex Street Subdivision, then the
compensation to be paid shall be an amount which the Company, as a prudent
owner, would pay rather than be forced to relocate and shall include all
damages suffered by the owner by reason thereof.
4. If the Court determines that the Company
is not required to relocate its business then the compensation shall be an
amount which a prudent owner would pay rather than lose such rail services and
shall include business disturbance (which includes the cost of re‑adapting
the plant) and the present value of any anticipated loss of profits.
5. The parties agree that if the Company
has no private siding agreement with the Canadian Pacific Railway Company
relating to rail-
[Page 47]
way services on the Sussex Street
Subdivision, then no compensation shall be payable pursuant to the terms of
this agreement unless:.
(a) there is a team track located
immediately adjacent to the lands and premises upon which the Company carries
on its business operations; and
(b) substantially all of the freight
shipped or delivered by the Company is shipped or delivered by the Canadian
Pacific Railway Company and is loaded or unloaded at the team track referred to
in subparagraph (a) hereof; and
(c) the freight shipped or delivered
to or from the Company’s plant located on the said lands and premises is loaded
or unloaded into and from the railway cars to the plant located on the said
lands and premises without the necessity of loading or unloading into a truck
or other vehicle;
then, notwithstanding the provisions of
paragraphs 3 and 4 hereof the amount of compensation payable pursuant to the
terms of this agreement shall be the amount which the Company, as a prudent
owner, would pay rather than to lose the use of the team track and shall
include increased costs of operating.
6. The compensation, if any, shall be
determined on the basis that the Company was the absolute owner of the lands
and premises upon which the business operations are being carried on, and the
amount of compensation so determined shall be apportioned by the Court as to
the portion payable to the Company and the portion payable to the Landlord.
7. The parties hereto agree that the
compensation shall be determined as of the 24th day of March, A.D. 1964.
8. The Commission on behalf of the Crown
agrees to pay the Company and the Landlord the amount, if any, so determined.
9. The parties hereto agree that costs,
including those of expert witnesses, shall be at the discretion of the Court.
It will be noted that in para. 2 above, the
parties agreed that the compensation should be determined by the Exchequer
Court pursuant to para. (g) of s. 18(1) of the Exchequer
Court Act. In order to obtain a fixation of such compensation the
appellants issued a Petition of Right.
The agreement by which the appellants held the
private railway siding rights was subject to cancellation on two months’ notice
if leave were granted by the Board of Transport Commissioners, and the lease of
lands held by the appellants from the railway company provided for cancellation
on one month’s notice.
The learned Exchequer Court judge held,
therefore, that the appellants’ reasonable expectation of continuing possession
of the said lands or of having siding agreement continued was not à legal
interest that could be considered in assessing compensation and, therefore,
that clause 1 as recited above had the effect of creating such legal interest
[Page 48]
in both the siding agreement and the lease of
lands, and fixing it with a duration of ten years, i.e., until March 24, 1974.
Although it was submitted in argument that there was no basis for such a
finding and that on the other hand the appellants might have continued to enjoy
such siding rights and lease of lands for an indefinite period, I am of the
opinion that, with respect, the learned Exchequer Court judge was correct and
that it would be impossible to conceive of the appellants continuing their
industry on the site which is the subject matter of this appeal for a period
beyond March 1974. It would appear indeed that the provisions of the said
para. 1 are generous.
The building is within 100 yards of Sussex
Drive, a main driveway along the Ottawa River in this part of Ottawa There are
very many public buildings in the area including the National Research Council
and the new City Hall. It is proposed, and reference thereto was made in the
evidence, to erect other prestige government buildings in the immediate area.
The site is now covered by the provisions of By-law AZ-64 of the General Zoning
By-laws of the City of Ottawa which restricts the use of the site to
residential purposes and therefore the company was occupying it as a
non-conforming use.
In all of the circumstances, therefore, the
fixing of the ten-year period for the ascertainment of the compensation which
would be due to the appellants was a proper decision.
The learned Exchequer Court judge conceived it
as his task to determine whether the compensation would be payable under the
provisions of para. 3 or of para. 4 aforesaid, and, with respect,
correctly determined that in approaching the problem he should use the formula
stated by this Court in Diggon-Hibben Ltd. v. The King, as approved in Woods Mfg. Co. v.
The King. In
the former case, Rand J., said at p. 715:
…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.
The learned Exchequer Court judge, therefore,
addressed himself to the task of determining whether compensation should be
paid on the basis that the company was required
[Page 49]
to relocate its business as a result of the
removal of the railway siding in which case such compensation would be the
amount that a prudent man would pay rather than be forced to relocate, or
whether the compensation would be payable the company not being required to
relocate its business, in which latter case the amount would be what the
prudent owner would pay rather than lose such rail service. The learned
Exchequer Court judge found that if the company were forced to relocate the
prudent owner would have paid rather than be forced to relocate the sum of
$152,802.63 and that, on the other hand, if the appellants were not forced to
relocate then the prudent man would have paid rather than lose the rail service
the sum of $91,300. He also found that if the appellants had closed down their
business entirely their loss would have been $225,000 which included goodwill
and all other assets but no land and buildings. It was not physically
impossible to carry on the enterprise without the railway siding services.
Therefore, the learned Exchequer Court judge said the prudent owner would take
the least costly of these three alternatives and the prudent owner not being
required to relocate, the compensation would be payable in accordance with
para. 4 of the agreement. Therefore, such compensation should be fixed at
$91,300.
In argument on the appeal, it was submitted most
forcefully that the learned Exchequer Court judge could not decide in this
fashion whether or not the appellants were required to relocate but had to
determine apart from the question of costs whether or not the appellants were
required to relocate considering (a) the physical impossibility of carrying on
their enterprise in the site without the siding, or equally (b) the additional
cost of carrying on without the siding being such that the operating profit
would be so reduced that no prudent owner would continue to operate its
business under such circumstances.
I am of the opinion that this criticism of the method
used by the learned Exchequer Court judge is not sound. Certainly there was no
physical impossibility in carrying on the business without the siding. It was,
in fact, carried on without the siding for months after the abandonment of the
same on June 15, 1964. If, as it was inevitable, the costs of operation of the
business without the siding were increased then the present value of that
increase in costs
[Page 50]
was the subject of the compensation which was to
be fixed and was fixed by the Exchequer Court. Under such circumstances, the
prudent owner, it is true, would receive a smaller net operating profit in each
of the ten years between 1964 and 1974, but he would have to credit the net
operating revenue with a portion of the compensation which he received.
Therefore, the true return upon his investment would be not the $12,000 odd per
year which the evidence accepted by the learned Exchequer Court judge proved it
would be after the abandonment of the siding, but $12,000 odd per year plus the
appropriate instalment from the compensation to make up the same net profit on
the: investment which had accrued during the six years prior to the abandonment
of the siding.
It is appropriate at this time to note that the
learned Exchequer Court judge fixed this compensation after a lengthy trial at
which he heard a very large number of witnesses who gave both factual and
opinion evidence and that he was called upon to weigh and assess that evidence.
The learned Exchequer Court judge, with respect, carried out that task and in
his reasons for judgment, said:
Mr. Quayle’s estimate was predicated
in the main on two test railroad car unloadings done by Canadian Pacific
Railway Company in 1964. These unloadings were obviously staged for the purpose
of preparing for this hearing (see Exhibits P-2 to P-17). No care was taken to
make either of them a representative sample of what might occur if the team
track was regularly used for loading and unloading, and in my view, all the
evidence predicated thereon is unreliable and I do not accept the conclusions
from the calculations made thereon by Mr. Quayle. I also do not accept any
conclusions from calculations made by Mr. Quayle from hearsay evidence of
the operations of Florence Paper Company Limited given to him by officers of
Florence Paper Company Limited. And in so far as the same is based on the
evidence of Mr. Frank Florence given in the witness box, I say it is also
unreliable, because he exaggerated the difficulties of the operation, and made
extravagant and unconscionable claims for compensation, and minimized the
obvious greater efficiency of the new plant on Sheffield Road.
This Court as long ago as 1890 in Vezina v.
The Queensaid:
It must be an exceptional case in which, on
a mere estimate of damage depending on appreciation of the evidence and the
exercise of judgment, this court can be expected to interfere with the amount
settled by the tribunal primarily charged with the inquiry, and which has
facilities for arriving at a correct conclusion that are not possessed by the
appellate court. Where the tribunal of first instance has proceeded on correct
[Page 51]
principles and does not appear to have
overlooked or misapprehended any material fact, an appeal against the amount
awarded will in most cases resemble an appeal against an assessment of damages
in an action, which would be a hopeless proceeding unless some very special
reason for the interference of the appellate court can be shown.
That statement was quoted with approval by
Taschereau J., as he then was, in The King v. Elgin Realty Co. Ltd..
In the decision of this Court delivered on
January 24, 1967, in Robert A. Kramer v. The Wascana Centre Authority, I had occasion to say:
In my view, it is not the duty of this
Court to engage in calculations or to exercise judgment as to land valuation in
the Province of Saskatchewan. It is the duty of this Court to consider whether
those calculations and assessment of land valuations were made in accordance
with the proper and well recognized principle.
It is, therefore, my duty to consider the
reasons of the learned Exchequer Court judge only for the purpose of
determining whether he applied proper principles and not to attempt any
recalculation of amounts, especially when the learned Exchequer Court judge’s
calculations depended on the weighing of the probative value of the evidence
given before him.
As I have said, the learned Exchequer Court
judge determined that the compensation which would be payable if the appellants
were required to relocate was $152,802.63. If any of the submissions made in
argument as to the appropriate costs had the appellants been required to
relocate were successful they could only have the effect of increasing that
amount and therefore making the discrepancy between that amount and the amount
of compensation which the learned Exchequer Court judge found was payable, if
the appellants were not required to relocate, the larger, and therefore make it
even clearer that the appellants were not entitled to compensation on the basis
of being required to relocate as outlined in para. 3 of the agreement.
Therefore, it is my intention to consider the compensation which the learned
Exchequer Court judge found to be payable on the basis of para. 4 of the
said agreement the appellants not being required to relocate their business.
That amount was $91,300 which the learned
Exchequer Court judge determined as follows. Upon consideration of
[Page 52]
the evidence adduced he accepted the estimate
given by one James Ross, a chartered accountant called by the respondent who
had been practising in the City of Ottawa and had been a chartered accountant
since 1932. That evidence; was that the additional cost due to the loss of the
railway siding services would be $16,100 per year including an amount of $5,000
per year for additional supervision, which amount would cover only incidental
expenses not readily ascertainable in detail. He fixed the present value at 6
per cent of $16,100 annually for ten years at $118,500, and therefore found
that the gross compensation would be that sum of $118,500. That compensation,
however, had it come into the appellants’ hands in the form of larger gross
profits in each year would have been subject to income tax. Therefore, the
learned Exchequer Court judge reduced the sum by an estimate of $27,200 so that
he found the net compensation payable should be $91,300.
It was submitted by counsel for the appellants
that this method of procedure was contrary to the decision of this Court in The
Queen v. Jennings. It
is true that there Judson J., giving judgment for the Court upon the issue,
expressly refused to follow the majority decision in British Transport
Commission v. Gourlay, and
held that in fixing compensation for physical injuries sustained by a plaintiff
which affected his earning capacity there should not be any deduction made on
account of income tax which the plaintiff might have been called upon to pay on
the income which he might have received had he not sustained the injuries.
I am not of the opinion that the decision of
this Court in The Queen v. Jennings is applicable to exclude the
deduction of income tax liability from the compensation payable to the
appellants herein.
Here, the task of the tribunal fixing the
compensation was to place itself in the position of the prudent owner who would
make a payment rather than lose the railway siding services. Any prudent
company executive, in calculating the additional profits which his company
would obtain if it continued to have the use of the railway siding, would
immediately realize that such additional profits
[Page 53]
would be subject to income tax and therefore
would be willing to pay, in order to continue to obtain those additional
profits, only the net return to the company after allowing for such income tax
as the company would have been required to pay. Otherwise, the prudent company
executive would be making a payment of more than he can hope to recover by the
additional profits, which would certainly not be prudent. I am, therefore, of
the opinion the situation is not that in The Queen v. Jennings, and the
course adopted by the learned Exchequer Court judge was a proper course.
In the Exchequer Court, counsel for the
appellants advanced the argument that the Crown was estopped from alleging that
the appellants were not required to relocate and that, therefore, the
compensation must be calculated on the higher basis set out in para. 3 of
the agreement. That argument was not advanced in this Court. If it were
necessary to do so, I would simply adopt the reasons of the learned Exchequer
Court judge who found that there was no representation within the meaning of
that term as used in estoppel jurisprudence and that the appellants were free
to make their decision to relocate or not and further that there was no
intention on the part of the National Capital Commission to induce the
appellants to relocate. The National Capital Commission offered to sell land to
the appellants and to others who had lost their rail services at 20 per cent
less than the market price. The appellants did take advantage of that offer and
have relocated but I am in agreement with the view expressed by the learned
Exchequer Court judge when he said:
There are many reasons why the suppliant,
Florence Paper Company Limited, herein did not make this choice but, in my
view, they are unrelated to the loss of the private railway siding and rail
services. For example, they obviously were aware that they could not carry on
forever relying on obtaining and using $1.05 to $1.65 labour. The evidence of
Mr. Quayle was that there was only one person paid $1.65 and the others’
wages ranged from $1.05 to $1.40 and that the wages paid by. Florence Paper
Company Limited were 23.4% less than those paid in comparable industries in the
Ottawa area. They obviously must have considered that they could not rely for
too much longer on the “bull gang” as opposed to automation by using lift
trucks, conveyor belts and other modern equipment. They knew that their Boteler
Street plant could not be adapted to use this modern equipment. They knew that
substantial functional depreciation, and economic depreciation had taken place.
They also would consider that this cheaper site which they got at a most
reasonable price from the National Capital Commission would in the long run
effect further economies in rental alone. In addition, they knew
[Page 54]
that more economies would result because of
the larger land area resulting in easier manoeuverability of incoming and
outgoing trucks. They also knew that they could more efficiently handle paper
in a new plant especially when they incorporated the new techniques carried out
in other more modern plants in Canada and the United States in their new
building and obtained the services of an architect to make certain that they
had a modern efficient and more functional building. These are some, but there
were undoubtedly many other reasons why they decided to relocate, which again
are unrelated to the issue in this action.
The appellants also argue that they should be
entitled to a 10 per cent increase of the compensation and that they should be
allowed interest on the compensation from the date the appellants vacated the
Boteler Street plant, i.e., December 1965. The question of 10 per cent increase
of compensation was settled in this Court in Drew v. The Queen. That percentage will only be
allowed when there are special circumstances, i.e., when the loss suffered by
the suppliants cannot be determined with complete accuracy. In this case, in my
opinion, the learned Exchequer Court judge has determined the compensation with
complete accuracy and therefore the situation in which the 10 per cent
allowance may be made does not exist. In so far as the interest is concerned,
in my view, s. 47(b) of the Exchequer Court Act, R.S.C. 1952,
c. 98, is a complete answer. That subsection provides:
47. In adjudicating upon any claim arising
out of any contract in writing the Court shall decide in accordance with the
stipulations in such contract, and shall not allow
* *
*
(b) interest on any sum of
money that the court considers to be due to the claimant, in the absence of any
contract in writing stipulating for payment of such interest or of a statute
providing in such a case for the payment of interest by the Crown.
The appellants also submit that the Order of the
Exchequer Court should have included a specific direction for the payment of
the costs of obtaining the services of expert witnesses, and point out
para. 9 of the agreement which reads as follows:
9. The parties hereto agree that costs,
including those of expert witnesses, shall be at the discretion of the Court.
Such a direction is not necessary. The Registrar
of the Exchequer Court will tax the costs in accordance with the usual
procedure and, in view of para. 9, will consider the
[Page 55]
appellants’ claims for the costs of expert
witnesses. In so far as the trial is concerned, the matter has been settled by
the decision of the learned Exchequer Court judge as to set-off for costs since
the trial occurred after the Confession of Judgment had been filed.
I am of the opinion, therefore, that this appeal
should be dismissed with costs.
Appeal dismissed with costs.
Solicitors for the appellants: Hughes,
Laishley, Mullen & Touhey, Ottawa.
Solicitor for the respondent: D.S.
Maxwell, Ottawa.
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