Canadian Lawyer

June 2020

The most widely read magazine for Canadian lawyers

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Page 35 of 51

34 LEGAL REPORT REAL ESTATE implemented changes in its legislation as well that the province describes in an October news release as providing "clarity to the Expropriation Act and support [for] continued infrastructure investments." That falls on the heels of a couple of significant 2019 Nova Scotia Court of Appeal decisions. In Atlantic Mining NS Corp. (D.D.V. Gold Limited) v. Oakley, the appeal court deter- mined that the provincial expropriation act protects interests that are propriety in nature, not personal. Its decision overturned an award made by the lower court for non-pecu- niary losses related to disturbance, amounting to 15 per cent of the market value of the land. Another case, Nova Scotia (Attorney General) v S&D Smith Central Supplies Limited, resulted in an $11-million decision, plus costs, "which were not insignificant," says litigator Bruce MacIntosh of MacIntosh MacDonnell & MacDonald in New Glasgow, N.S., who acted for Smith in what he describes as one of the largest and longest expropriation cases in the country. The case turned on the province's desire to put a highway through part of the property owned by hardware retailer Smith Central Supplies dating back to 1998, although the expropriation document was filed with the land registry office in 2012. The appeal court upheld the Nova Scotia Utility and Review Board's $6.7-million award for disturbance damages, plus increased interest as a result of the delay in the expropri- ation proceeding, along with costs. MacIntosh says the province was unflinching in its offer of $260,000 for the property and the desire to stick to its planned route, which would have resulted in a much larger impact on the property than if it was altered to just a portion of the property, as had been suggested by the property owner. "We tried time after time after time to sit down and talk reasonably," he says. "Nova Scotia refused to take a non-adversarial approach." He suspects other property owners with less appetite to fight have simply ceded to the province's demands over the years. He believes the underlying message of the case is that type of opposition presented by the province in his case will not be received favourably by the courts. But, ultimately, it reinforces the Supreme Court of Canada's decision in Dell Holdings Ltd. v. Toronto Area Transit Operating Authority, which allows the disturbance damages to date back to the beginning of the expropriation authority's indication of intent to expropriate, and delays in the time it took to determine compensation can be considered when the property owner is no longer productively using that land. "It's very useful for a property owner to know as early . . . as possible whether the province or some governmental authority is proposing to take their land. And it can be very difficult for a property owner, particu- larly businesses, to plan their future if they are uncertain when or if their property is going to be expropriated," says Doherty. "I think there are expropriation authorities who can learn some lessons, [which include making them whole.] I hope they were chastened by the award." Bruce MacIntosh, MacIntosh MacDonnell & MacDonald SIGNIFICANT CANADIAN EXPROPRIATION CASES Nova Scotia (Attorney General) v. S&D Smith Central Supplies Limited: Award based on loss incurred through the expropriation process Edmonton (City) v. Business Care Corp: Leaseholder rights protected Southwind v. Canada: Federal Court of Appeal applies state of the law from the 1920s Atlantic Mining NS Corp. (D.D.V. Gold Limited) v. Oakley: Proprietary, not personal interests protected in Nova Scotia Court of Appeal decision

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