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EXPROPRIATION - Compensable interests - Disturbance - Measure of

Monday, March 25, 2019 @ 11:50 AM  

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Appeal by Atlantic Mining from a decision by the Nova Scotia Utility and Review Board calculating disturbance damages arising from expropriation. The appellant expropriated residential property owned by the respondent, Oakley, to obtain surface title in furtherance of a gold mine operation. The respondent had purchased his property in 1997, and subsequently built a single-story home thereon. Negotiations between the parties were unsuccessful, leading to expropriation through a vesting order issued by the Minister of National Resources in 2012. The parties agreed that the market value of the property was $305,000. The issue of non-pecuniary disturbance losses was remitted to the Board for determination. The Board awarded the statutory maximum amount of 15 per cent of the market value. Atlantic appealed on the basis the award was unreasonable.

HELD: Appeal allowed. The Board misinterpreted disturbance losses as encompassing non-pecuniary losses, ignoring or discounting the purpose and objects of the Expropriation Act, the related authorities, and the context of the word "losses" in ss. 26 and 27 of the Act. The context of disturbance losses within the Act related to proprietary ownership and enjoyment of use of that ownership, indicating that such losses had a pecuniary meaning. In addition, the Board's interpretation contemplated losses broader than permitted under common law and was thus unreasonable. The respondent provided no receipts or detailed evidence in support of the losses for which he sought compensation. A two per cent award would give the respondent approximately $6,000 for his largely unquantified and unexplained losses.

Atlantic Mining NS Corp. v. Oakley, [2019] N.S.J. No. 91, Nova Scotia Court of Appeal, P. Bryson, L.L. Oland and C.A. Bourgeois JJ.A., March 6, 2019. Digest No. TLD-March252019002