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EXPROPRIATION - Compensation - Business property - Entitlement

Monday, April 15, 2019 @ 8:56 AM  

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Appeal and a cross-appeal from an expropriation compensation decision by the Nova Scotia Utility and Review Board. The respondent, S&D Smith Central Supplies, owned land from which it operated a home hardware business. In 2012, the Province filed a notice that it had expropriated a corridor through the respondent's land for reconfiguring the Trans-Canada Highway. An issue arose over the determination of the respondent's disturbance compensation. The Province relied on the fact that the respondent was advised of a prospective expropriation in 1998, and therefore any future capital costs on the parcel would not be compensated. The respondent took the position that the disruption to planned development of the parcel from 1998 onward was a disturbance that caused compensable losses. Among other amounts, the Board awarded $6.7 million in disturbance compensation, reflecting that the expropriation process and related disturbance dated back to the 1998 notice. The Province appealed on the basis the compensation effectively redressed non-compensable pre-expropriation loss. The respondent cross-appealed on the basis the amount failed to sufficiently reflect future disturbance losses.

HELD: Appeal and cross-appeal dismissed. The Board's conclusion that the expropriated portion of the respondent's land was occupied as at the date of expropriation was reasonable. The fact that the taken portion did not include functioning buildings did not detract from the fact that the respondent exerted control over those lands to support its business operations. There was no basis to split the respondent's occupational personality between ownership and business operations. There was no basis for the Province's contention that compensation should be denied for proven economic losses arising from the expropriation process. The fact that the expropriation involved a partial rather than full taking did not preclude the respondent's recovery of disturbance damages. The compensation for the delay and disruption of use for potential business expansion satisfied s. 27(3)(b) of the Expropriation Act. The Board's finding of potential expansion, and the quantification of the compensation and interest for that disturbance were well-supported by the evidentiary record. With respect to the respondent's cross-appeal, there was no error in disallowing compensation for future costs beyond the end of the fiscal year in which the expropriation occurred.

Nova Scotia (Attorney General) v. S&D Smith Central Supplies Ltd., [2019] N.S.J. No. 119, Nova Scotia Court of Appeal, J.E. Fichaud, J.W.S. Saunders and D.R. Beveridge JJ.A., March 26, 2019. Digest No. TLD-April152019002