City of Vancouver v. Brandram-Henderson of B.C. Ltd., [1960] SCR 539

Supreme Court of Canada

City of Vancouver v. Brandram-Henderson of B.C. Ltd., [1960] S.C.R. 539

Date: 1960-04-11

City of Vancouver Appellant;

and

Brandram-Henderson of B.C. Limited Respondent.

1960: January 28, 29; February 1, 2, 3; 1960: April 11.

Present: Kerwin C.J. and Locke, Cartwright, Abbott and Judson JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA

Arbitration—Motion to set aside award for misconduct or error of law on face—Evidence taken under oath—Whether any evidence to support finding—Whether award uncertain—The Arbitration Act, R.S.B.C. c. 16, s. 14.

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The appellant City had agreed to indemnify the respondent against any damage or injury it might sustain or which might be occassioned to the premises it occupied, by the construction of a bridge to be built by the appellant over the said property. Failing to agree as to the amount to be paid, the parties proceeded to arbitration as provided for by the agreement. An award of $12,500 was made by the arbitrators for injurious affection to the leasehold interest and diminution of property values (that portion of the award was not in question in this appeal). By a majority, the arbitrators awarded $40,000 for loss of business, loss of efficiency, loss through disruption and general inconvenience. As to the claim for special expenses, the arbitrators ruled that it would either be covered by the award of $40,000 or by the taxed costs. The trial judge set aside the award of $40,000 on the grounds that there was no evidence to support it and that it was invalid as being uncertain. This judgment was reversed by the Court of Appeal. The City appealed to this Court.

Held: The appeal should be dismissed.

Per Kerwin C.J. and Abbott and Judson JJ.: The evidence having been taken in shorthand by consent, this Court was entitled to look at it to determine whether or not there was evidence upon which the arbitrators could make their award. As the arbitrators had evidence before them to warrant the award, there was, therefore no error manifest on the face of it, including for that purpose all the evidence.

All that the arbitrators decided with respect to the special expenses was that they should not be granted in addition to the $40,000 and costs.

Per Locke, Cartwright, Abbott and Judson JJ.: Where there has been a submission to arbitrators to determine compensation and the evidence on which the award is based is taken under oath, as permitted by the Arbitration Act, this Court is entitled to examine the record of the proceedings to determine whether, as a matter of law, there was evidence of loss or damage falling within the terms of the submission. In the absence of such evidence, the award may be set aside at common law or under s. 14 of the Act as misconduct; in that case, there would be an error of law appearing on the face of the award. There was, in the present case, evidence upon which the arbitrators could base their award of damages for loss of profit, and, in the absence of a contention that any of the evidence relied upon by the arbitrators was improperly admitted, this Court could not concern itself further with this aspect of the matter. This Court could not in proceedings such as these weigh the evidence or interfere with the award on the ground that it was against the weight of the evidence. Cedar Rapids v. Lacoste, [1914] A.C. 569, distinguished.

The contention that the award was rendered uncertain by the manner in which the special expenses had been dealt with, could not be entertained.

APPEAL from a judgment of the Court of Appeal for British Columbia[1], reversing a judgment of Clyne J. Appeal dismissed.

Hon. J. W. de B. Farris, Q.C., and R. Elliott, for the appellant.

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D. McK. Brown and R. H. Guile, for the respondent.

The judgment of Kerwin C.J. and of Abbott and Judson JJ. was delivered by

THE CHIEF JUSTICE:—This is an appeal by the City of Vancouver against the judgment of the Court of Appeal for British Columbia[2] reversing the order of Clyne J. and restoring the award of certain arbitrators in its entirety. The arbitrators, of whom there were three, had unanimously allowed the company-respondent the sum of $12,500 for injurious affection to its leasehold interest and diminution of property values and the costs of the arbitration. The majority had awarded the company the sum of $40,000 for compensation for loss of business, loss of efficiency, disruption and general inconvenience. An application to Clyne J. to set aside that part of the award as to the $40,000 succeeded and it was ordered that the City pay the company the costs with respect to the claim of $12,500 but that the company pay the City the costs in connection with the claim of $40,000. The company was ordered to pay the costs of the application before Clyne J. The Court of Appeal restored that part of the award as to the $40,000 and ordered the City to pay the costs of the arbitration, of the motion before Clyne J. and of the appeal. The reasons of the majority were delivered by Davey J.A. with whom O'Halloran J.A. agreed. Sidney Smith J.A. dissenting, would have affirmed the decision of Clyne J.

About 1949-50 the City decided to erect a new Granville Street bridge. In the Granville Island area the company and others were tenants of the National Harbours Board. Because the area, including the lots upon which the offices and paint factory of the company were located, was the property of the Crown in right of Canada, doubts arose as to the power of the City to expropriate the company's leasehold interests and in order to avoid litigation, an agreement, dated November 10, 1952, was entered into between the company and the City. It recited that any sub-leasing or alienation of any property leased by the company from the Board or any user of the said property contrary to the terms of its lease, dated June 20, 1939, required the approval of

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the Board and that the Board had agreed provisionally to give such approval. The agreement also contained the two following recitals:

AND WHEREAS the City now requires; firstly for construction of a Pier known as M. 1 for the said Bridge, a licence to use a portion of the said property, and secondly, for the footings of the said Pier M. 1, a sub-lease of part of the land covered with water demised by the hereinbefore recited lease, and thirdly, for the said bridge a licence irrevocable during the terms of the said lease to construct and maintain the span suspended over and above the said property.

***

AND WHEREAS the use of the portion of the property as above recited will cause certain loss to the Company.

The document then proceeded to set forth that the City agreed:

(a) That the position of the said Pier M. 1 on a portion of the land covered with water leased to the Company shall be as shown outlined in red on the attached plan which said plan is marked Schedule "A" hereto and shall form an integral part of this Agreement;

(b) That the area to be used by the City and its Contractor during the construction of the said Pier M. 1 shall be and shall not exceed the area shown outlined in green on the said plan marked Schedule "A" to this Agreement;

(c) That the estimated duration of occupancy of the area referred to in sub-paragraph (b) above will be 120 days from the 6th day of October A.D. 1952;

(d) That if at any time after the City or its Contractors shall enter upon the said property pursuant to the terms hereof any damage or injury is sustained by the Company or to the premises of the Company which said damage whether in whole or in part and whether directly or indirectly is occasioned by or attributable to the construction or presence of the said Bridge or to the fact that the said Bridge crosses the property of the Company whether or not a claim arises against the Company under or by virtue of clause 11 of the said lease dated 20th June, 1939, then the City will indemnify the Company in respect of such proportion of such damage or injury as is attributable to such construction or presence of such Bridge;

Clause (d) is relied upon by the company but the City takes the position that it is not applicable as the parties are engaged in a particular arbitration and not litigation about the subject matter of the clause. It is reproduced merely as part of the narrative because in my view it has no relevancy to the matters to be decided.

The City further agreed to pay the company the cost of re-locating the latter's office during the period of occupancy referred to in sub-para. (c) set out above which estimated cost was itemized and was to be payable by the City to the

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company from time to time upon production by the company of receipted vouchers. The proper amount was paid by the City and there is no dispute about these items. Clauses (i) and (j) provide:

(i) That if during the time, or part of the time, while the said span is under construction over and above the said property of the Company, the office of the Company cannot be used owing to reasonable apprehension of danger to employees of the Company, then the City will also pay to the Company the costs of relocating the office of the Company for such period as may be considered necessary provided always that the need for such relocating as well also as the cost of the same shall, in the absence of agreement between the parties hereto be the subject of arbitration in the manner hereinafter provided in clause 1(j) hereof;

(j) That the City will pay, in addition to the above, compensation for loss of business, if any, loss of efficiency, disruption, diminution of property values, general inconveniences, injurious affection, or any other loss whatsoever, whether caused by or arising as a result of the relocation of the office whether during the time mentioned in clause (h) or clause (i) hereof, the construction of the said Pier M. 1, or the construction and existence after construction of the said Bridge or any part thereof, a sum of money to be determined by the parties hereto within three months of the end of the period of construction of that portion of the said Bridge suspended over the said property of the Company, failing which a sum of money to be determined by arbitration of three (3) arbitrators, one to be appointed by each party and the third by such two arbitrators and otherwise pursuant to the Arbitration Act of the Province of British Columbia.

It is agreed that the word "as" should be inserted in the second line of (j) before the word "compensation".

The City paid the costs of re-locating the company's office but it is important to bear in mind that the re-location continued for a period of about eleven months at a distance of three hundred yards from the company's factory. Bearing that in mind the real dispute hinges upon clause (j) and the terms of the award of the arbitrators with reference to a claim by the company for out-of-pocket expenses.

The Board was duly constituted, particulars of claim were delivered on behalf of the City and the Board sat for a total of twenty-four days of which seventeen were occupied with the presentment of the City's claim and the evidence on behalf of both parties. The Board was of opinion that the claim should be divided as follows:

Item 1. Compensation for loss of business, if any, loss of efficiency, loss through disruption, and general inconvenience.

Item 2. Diminution of property values, and injurious affection to the leasehold interest.

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The arbitrators pointed out that the company relied upon the evidence of two chartered accountants but the Board unanimously rejected the method adopted by the auditors of computing the compensation to be paid to the company under Item 1.

The award continues:

A majority of the Arbitrators, consisting of the Chairman and Mr. Smelts, are of the opinion that ample evidence is given to prove loss of business, loss of efficiency, loss through disruption and general inconvenience due to the construction of the bridge. They are also of the opinion that there was ample evidence given for them to compute what sum of money should be paid to the Company as compensation under those headings. After examining all the evidence and weighing it to the best of their ability, they are of the opinion that the sum of $40,000 is a fair amount to award to the Company under these headings. Mr. Wasson, on the other hand, is of the opinion that the Company did not prove any damage and accordingly would award nothing under the abovementioned headings. Attached hereto as Schedule 1 are his Reasons for so finding.

I do not reproduce Mr. Wasson's reasons because all the matters referred to by him were mentioned in the argument before us on behalf of the City. After awarding the sum of $12,500 for injurious affection and damage to the leasehold interest and diminution of property values, the award states:

With regard to the claim for out-of-pocket expenses advanced by the Company, the Board is unanimously of the opinion that such sum as the Company is justly entitled to will either be covered by the amount of $40,000 already awarded or by the award of costs to the Company as hereinafter appears.

The costs are disposed of in the following paragraph of the award:

(c) The Board unanimously awards to the Company the costs of this arbitration, such costs to be based upon the tariff of the Supreme Court of British Columbia and to be taxed under the said tariff.

I agree that the City was not a wrong-doer as it proceeded in accordance with its agreement with the company. There is also no doubt that the award may be remitted in a proper case, which could not apply here because one of the arbitrators has died, or that it may be set aside, if an error of law appears on the face of the award Absalom Ltd. v. Great Western Garden Village Society Ltd[3].. Here the evidence was taken in shorthand by consent and we are entitled to look

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at the evidence to determine if the next point taken by counsel on behalf of the City is valid, i.e., that there was no evidence upon which the majority of the arbitrators could award the sum of $40,000; Lacoste v. Cedar Rapids Manufacturing and Power Co.[4], the second time the matter there in dispute was before the Judicial Committee, wherein Lord Warrington of Clyffe, speaking for their Lordships, states:

The law and practice of the Province of Quebec governing the procedure of the Court in such matters appear to be in all essentials the same as in this country. Although the appeal is a rehearing, a verdict of a jury or an award of an arbitrator acting within his jurisdiction is not in general set aside unless it is shown that the jury or the arbitrator proceeded on an erroneous view of the law, or that there was no evidence on which the verdict or the award could properly be arrived at, or that there was some manifest error leading to the result. There might also, of course, be some other matter in the conduct of the proceedings such as the wrongful admission or rejection of evidence which might vitiate the result. But as a general rule the Court does not set aside a verdict or an award merely on the ground that it is against the weight of evidence. Of course, a verdict or an award may also be set aside on the ground of misconduct, in the popular sense of the word, on the part of the jury or the arbitrator, but nothing of this kind is alleged in the present case.

The argument that in the present case there was no such evidence found favour with Mr. Justice Clyne and Mr. Justice Sidney Smith. However, while I agree with counsel for the City that the decision in Palgrave Gold Mining Co. v. McMillan[5], referred to by Mr. Justice Davey is distinguishable as there the award had to be made before entry without knowing the scope of the intended operations or the effect upon the owner's use of the land or upon its value, I do agree with that learned judge that there is nothing in the agreement under consideration in this appeal which requires loss of business or profits to be proved by loss of specific sales or customers. An attack was made upon certain suggested methods of computing the loss suffered by the company put forward on its behalf but there is nothing in the award to indicate that the majority of the arbitrators adopted any one of these methods in coming to their conclusion. Moreover, as Mr. Justice Davey points out the photographs and the evidence of the officers of the company show that interference, disturbance and inconvenience impaired its sales organization and reduced the company's sales generally, in

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addition to which extra administrative employees had to be employed. Mr. Brown, for the company, referred to many parts of the record and in my view these are sufficient in order to establish that the majority of the arbitrators had evidence before them to warrant the award.

Section 14 of the Arbitration Act of British Columbia, R.S.B.C. 1948, c. 16, is the only one requiring mention:

14. (1) Where an arbitrator or umpire has misconducted himself the Court may remove him.

(2) Where an arbitrator or umpire has misconducted himself, or an arbitration or award has been improperly procured, the Court may set the award aside.

There is no suggestion that any one of the arbitrators misconducted himself and the words "or an arbitration or award has been improperly procured" do not apply to a case where there is evidence to justify the award even if the amount allowed might be considered by some to be too large. The parties have agreed to arbitration and the question is not whether a Court would have allowed the same sum but whether there was any evidence upon which the majority of the arbitrators could award the sum of $40,000. There is, therefore, no error manifest on the face of the award including for that purpose all the evidence.

As noted above the Board unanimously considered that the out-of-pocket expenses would "either be covered by the amount of $40,000 already awarded or by the award of costs to the Company as hereinafter appears". All that part of this statement means is that the Board unanimously awarded the company the costs of the arbitration, such costs to be based upon the tariff of the Supreme Court of British Columbia and to be taxed under the said tariff. I can find in these references no evidence that the Board decided that the out-of-pocket expenses were included in the sum of $40,000 but merely that they should not be granted in addition to the $40,000 and costs.

The appeal should be dismissed with costs.

The judgment of Locke, Cartwright, Abbott and Judson JJ. was delivered by

LOCKE J.:—By the agreement made between the parties to this appeal dated November 10, 1952, it was provided that the appellant would indemnify the respondent against any

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damage or injury it might sustain or which might be occasioned to the premises occupied by it, either directly or indirectly, by the construction or the presence of the bridge to be built by the appellant over the said property. The clause containing the submission to arbitration described in somewhat more detail the matters in respect of which compensation might be awarded and provided that the appellant would pay in respect of any such loss, failing agreement between the parties as to the amount to be paid:

a sum of money to be determined by arbitration of three arbitrators, one to be appointed by each party and the third by such two arbitrators and otherwise pursuant to the Arbitration Act of the Province of British Columbia.

The award of a majority of the arbitrators, which was signed by Mr. A. J. Cowan, Q.C. and Mr. F. W. Smelts, after referring to certain evidence which had been given on behalf of the company based upon figures obtained from the Dominion Bureau of Statistics which was declared to be inadmissible, read in part:

A majority of the Arbitrators, consisting of the Chairman and Mr. Smelts, are of the opinion that ample evidence is given to prove loss of business, loss of efficiency, loss through disruption and general inconvenience due to the construction of the bridge. They are also of the opinion that there was ample evidence given for them to compute what sum of money should be paid to the Company as compensation under those headings.

The sum of $40,000 was fixed as the compensation in respect of the matters last mentioned, and a further sum of $12,500 for injurious affection to the leasehold interest and diminution of property values. As to the last mentioned sum the Board was unanimous and that portion of the award is not in question.

In addition to the claims advanced by the respondent in respect of the matters aforesaid, a sum of $8,275.09, of which particulars were given, was claimed as expenses incurred by the company as a result of the construction and existence of the bridge. As to these claims the award stated that the Board was unanimously of the opinion that "such sum as the company is justly entitled to will either be covered by the amount of $40,000 already awarded or by the award of costs to the company as hereinafter appears." Costs were

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unanimously awarded to the respondent, based upon the tariff of the Supreme Court of British Columbia and to be taxed under the said tariff.

Mr. Evans Wasson, the third arbitrator, dissented as to the award of $40,000 being of the opinion that there was no evidence that the company had suffered any damage from loss of business, loss of efficiency, disruption or from general inconvenience.

The City moved to set aside the award on the asserted ground that the arbitrators were guilty of misconduct in finding that the respondent had sustained loss of business, loss of efficiency, loss through disruption and general inconvenience, due to the construction of the bridge, when there was no evidence to substantiate such a finding; in awarding the sum of $40,000 as compensation when there was no evidence of any loss, and in failing to base their award on the evidence and preponderance of evidence. This application was heard by Clyne J. and that learned judge, being of the opinion that there was no evidence to support the award of $40,000 and that on the further ground it was invalid as being uncertain, set it aside.

The appeal[6] from that order was allowed by a judgment delivered by Davey J.A., with whom O'Halloran J.A. agreed. Sidney Smith J.A. dissented and would have dismissed the appeal.

The Arbitration Act of British Columbia, R.S.B.C. 1948, c. 16, provides by s. 4 that a submision, unless a contrary intention is expressed therein, shall be deemed to include the provisions set forth in the schedule to the Act, so far as they are applicable to the reference under the submission. The schedule referred to provides by para. (h) that the award to be made by the arbitrator or umpire shall be final and binding on the parties.

Section 14 provides that where an arbitrator or umpire has misconducted himself or an arbitration or award has been improperly procured the court may set the award aside. This section is in the same terms as s. 11 of the Arbitration Act of 1889, 52-53 Vict., c. 49 (Imp.). The section appeared in its present form in the first Arbitration Act

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passed in British Columbia (c. 1, Statutes of 1893), which statute was taken practically verbatim from the English statute.

The case for the appellant is that the evidence given before the arbitrators did not prove that the respondent had suffered any pecuniary loss by reason of any of the matters described in the submission and, alternatively, that the award was rendered uncertain by the failure of the Board to determine what part, if any, of the out of pocket expenses was included in the award of $40,000. The manner in which this portion of the award was worded, it is said, amounted to an attempted delegation to the taxing officer of the powers vested in the arbitrators alone.

Where, as in the present matter, there has been a submission to arbitrators to determine compensation to which the terms of the Arbitration Act apply, their award may be set aside if there is error appearing upon its face. It seems to have been assumed by both parties that the evidence taken before the arbitrators might be referred to, at least to determine whether there was evidence of pecuniary damage of a nature falling within the terms of the submission.

An error in law appearing on the face of an award means that you can find in the award or a document actually incorporated in it as—for instance—by a note appended by an arbitrator stating the reason for his judgment, some legal proposition which is the basis of the award and which is erroneous: Champsey Bhara & Co. v. Jivraj[7]; Attorney General for Manitoba v. Kelly[8].

As their subsequent actions showed, it was the intention of the parties to the submission in this case that, failing agreement, the matter should be determined by arbitrators upon evidence to be adduced before them and that the witnesses, as permitted by the schedule to the Arbitration Act, should be sworn.

The evidence referred to in the majority award is that taken on oath before the arbitrators and is stated by them to be that upon which that portion of the award is based. This, in my opinion, permitted the court to examine the

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record of the proceedings for the purpose of determining whether, as a matter of law, there was evidence of loss or damage falling within the terms of the submission.

The motion to set aside the award on the ground that the arbitrators were guilty of misconduct appears to have been made in reliance upon s. 14 of the Arbitration Act. The jurisdiction to set aside the award of an arbitrator for error of law appearing on the face of it is one that exists also at common law independently of the statute: 2 Hals., 3rd ed., p. 60; Race Course Betting Control Board v. Secretary for Air[9], per Greene M.R.

The word "misconduct" in s. 11 of the Act of 1889 in England has been given a wide meaning. Illustrations are to be found in 2 Hals., 3rd ed., at p. 257 et seq. In Walford v. McFie[10], Lush J., with whom Atkin J. agreed, said that it was legal misconduct on the part of the arbitrator to consider a document which had not been admitted in evidence and which was wholly inadmissible and went to the root of the question submitted to him for decision.

In Kelantan Government v. Duff Development Co.[11], Viscount Cave L.C. at p. 411 said that such an award might be set aside if it appeared on the face of it that the arbitrator had proceeded on evidence which was inadmissible or on wrong principles of construction, or had otherwise been guilty of some error in law.

If, as contended for the appellant, there was in the present matter no evidence to support an award of compensation for loss of profits from the business during the period of construction, that portion of the award may properly be set aside, in my opinion, whether the matter be dealt with under s. 14 of the statute or at common law.

In view of the contention that the arbitrators have acted without any evidence to support their finding, it is necessary to examine the evidence adduced at the hearing and I have done this.

The argument for the appellant is that the loss or damage sustained by the respondent company must be proven with some such certainty as claims in the nature of special damages in actions either for tort or breach of contract.

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While the case for the respondent is that their claim for compensation under the agreement is for loss of profits for the period during which the bridge was under construction, no evidence was given by any former customer of the respondent that he had refrained from dealing with the respondent in consequence of the conditions brought about on Granville Island by the construction of the bridge. The appellant says that the obligation of the respondent was to adduce the best available evidence of its loss and that this was not done. It may be that some better evidence might have been adduced in support of the claim, but this objection really goes to the weight and not to the admissibility of the evidence which was given.

The respondent was at the times in question the lessee of a parcel of land on Granville Island and a water lot adjoining it in False Creek under a lease from the National Harbours Board dated June 20, 1939. On this property it had for many years carried on the business of manufacturing and selling paint. Paint was delivered to wholesale and retail dealers and other customers in Vancouver and shipments made to other points in British Columbia from these premises, and it was shown that there was prior to the disruption caused by the construction of the bridge a substantial business in what were called pick-up sales. These were to contractors and others who called at the premises and took delivery of paint in their own vehicles, at times in considerable quantities.

The construction of the bridge, as shown in a recital to the agreement of November 10, 1952, called for the construction of a pier and footings for such pier on part of the leased land and part of the land covered by water. Photographs of the premises during the period of construction show that large quantities of building material and equipment were brought upon the respondent's property for the purpose of carrying on the necessary work. The bridge under construction passed over part of the respondent's buildings and, of necessity, the construction work and the material and equipment necessary for it created difficulties of access to the respondent's factory and the premises where sales were made. In the result it was found necessary to move the respondent's office

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to another location on Granville Island and temporary premises were rented for a considerable period while the work was in progress.

In support of the respondent's contention that it had suffered pecuniary loss in consequence of the construction of the bridge, N. M. Crute, a member of the firm of the company's auditors, gave evidence as to the annual profits of the respondent from its operations during the years 1947 to 1954, inclusive. For the year 1952 the profit was less than for any of the five preceding years except the year 1949. For the years 1953 and 1954 the profits were very much less than for any of the years 1947 to 1951, inclusive. While a computation had been made by the company's auditors of the profits which they considered the company would have realized but for the construction of the bridge, which was based upon the figures of the Dominion Bureau of Statistics for similar industries in British Columbia for these three years, this was rejected by the arbitrators as inadmissible.

J. D. F. Ekins, who had been the manager of the company from 1950 to March of 1953, described the difficulties caused to the operations by the noise of pile drivers and other equipment engaged in the construction of the pier and the footings, and of the congested conditions on the respondent's property created by the material and equipment of the contractors. This, he said, brought about difficulties for customers wishing to purchase material at the plant and resulted in the falling off of this business. The noise at times rendered it impossible to carry on conversations in the company's office. For the year commencing October 1, 1952, he said there was a drop in sales of over $100,000 from the preceding year, which he attributed to a general loss of efficiency and the interference with and disruption of the company's operations brought about by the construction of the bridge. Ekins had been employed by the company for many years and said that in his capacity as manager he usually spent from 70 to 75 per cent of his time in supervising and directing sales and the promotion of sales and that the time he had available for this purpose was cut in half by reason of his energies being diverted to other matters arising by reason of the work of construction.

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He said that normally there were from two to three dozen pick-up sales a day but that these fell off completely.

Evidence was given by Mrs. Margaret Hutchings, the assistant purchasing agent, and Miss Helen Burton, a secretary employed by the company, as to the disruption of the office work caused by the noise and the disturbance and that it was necessary to engage taxis to bring some of the female members of the staff to work.

George Thompson, the shipper for the company, described the difficult conditions created by the contractor's operations and the moving of the office and said that the shipping room had been blockaded for a day on one occasion and the stock room flooded with water, and that they could not give proper service to their customers in Vancouver.

James Randall, a salesman for the company for some fifteen years, said that there was a decrease in the sales made by him in the years 1952 to 1954, which he attributed to his inability to give good service to the customers and which, he said, resulted in the loss of business. There were, he said, constant complaints about poor delivery and service.

Harold J. McMullin, the office manager of the company, said that the noise of the operations at times caused an entire disruption of the work of the staff and that the efficiency of the staff was materially impaired.

D. A. McLean, who succeeded Ekins as manager in March of 1953, said that, nearly every day during the period of the construction, traffic on the island was tied up for varying periods, and that, in his opinion, the decrease in the company's sales during the years 1953 and 1954 was attributable to the disruption and disturbance caused by the construction operations. He said that it was of particular importance in the paint business that the manager should devote a large part of his time to the promotion of sales and working with the salesmen and that he normally spent two-thirds of his time on these activities and that he was only able to spend about one-half of this time on such work during the years 1953 and 1954. He also said there was a big increase in the company's sales and resulting profits in the year 1955 when the bridge had been completed.

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A number of witnesses were called for the City, for the purpose of showing that the falling off of the company's business had been due to other matters unconnected in any way with the bridge. It was also shown that during part of the period there had been a carpenter strike in Vancouver which brought great numbers of operations to a standstill, which would obviously affect the company's business.

In my opinion, the evidence of these witnesses and the documents produced by the company's auditor show that the profits of the respondent were diminished during the period of construction and there was evidence from which, if believed, the arbitrators could conclude that the diminution was due to the carrying on of the construction work and the interference with the company's operations.

The obligation of the City under the agreement of November 10, 1952, was to indemnify the respondent against any loss or damage attributable to the construction of the bridge. It was apparently common ground that the work would, of necessity, cause damage to the respondent since one of the recitals in the agreement read:

And whereas the use of the portion of the property as above recited will cause certain loss to the company.

There is nothing in the agreement to indicate that the parties contemplated that the existence of such damage or its extent should be determined by the arbitrators upon evidence differing in its nature from that which has always been accepted, by way of illustration, in claims for injurious affection resulting from the expropriation of part of an owner's claim. A claim of this nature is considered in the judgment of this Court delivered by Duff J. (as he then was) in St. Michael's College v. City of Toronto[12], where the matters to be considered in determining the quantum of the compensation are indicated. It would obviously be impossible that such a claim could be proven by evidence of the nature required to prove what are commonly designated as special damages in an action for tort. The fact that the appellant was permitted by the agreement to enter upon and carry on its operations upon the respondent's leasehold property and was, accordingly, not a wrong doer cannot

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affect the nature of the proof required of the damage or loss suffered and for which compensation was to be made. It is commonly the case where lands upon which the owner is actively carrying on business are expropriated that it is necessary to estimate the damage sustained by the dislocation of the business, due to the necessity of moving it to other quarters. While the quantum of the damage cannot be determined with mathematical accuracy, it has never been suggested that this prevents an award based upon evidence that loss actually has resulted from the enforced taking of the nature of that given in the present matter.

Here there is evidence, in my opinion, upon which the arbitrators might base their award of damages for loss of profit and, in the absence of a contention that any of the evidence upon which the arbitrators relied was improperly admitted, we cannot concern ourselves further with this aspect of the matter. This is not an appeal from the award and the proceedings upon a motion such as this are not in the nature of a rehearing, as was the case in Cedar Rapids v. Lacoste[13]. In that case the expropriation was made under the provisions of the Railway Act, R.S.C. 1906, c. 37, which by s. 209 provided that where the award exceeded a stated amount any party might appeal upon any question of law or fact to a superior court: Lacoste v. Cedar Rapids[14]. This fact is noted in that portion of the judgment of the Judicial Committee in the second appeal in that matter[15], to which we were referred on the argument. We cannot in the present proceedings weigh the evidence or interfere with the award on any such ground as that it is against the weight of the evidence.

As to the contention that the award is rendered uncertain by reason of the manner in which the amounts claimed as special damages were dealt with by the arbitrators, I agree with Davey J.A. In my view, that portion of the award which I have quoted above is properly construed as meaning that such portion of the $8,275.09 claimed as is not properly taxable as costs in the manner directed, is included in the sum of $40,000 awarded. The matter left to the taxing officer is not to decide what portion of the amount claimed

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is to be allowed as compensation but simply which of the items are properly allowable as costs of the proceedings: the items excluded are by virtue of the award included in the lump sum awarded.

I would dismiss this appeal with costs.

Appeal dismissed with costs.

Solicitor for the plaintiff, appellant: E. N. Rhodes Elliot, Vancouver.

Solicitors for the defendant, respondent: Russell & DuMoulin, Vancouver.