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EXPROPRIATION - Compensation - Entitlement - Compensable interests

Tuesday, October 13, 2020 @ 7:40 AM  

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Appeal by the Lynches from a decision by the Board of Commissioners of Public Utilities refusing interim compensation for expropriation of land. The appellants owned land within the City of St. John’s Watershed Area. In 2016, the Court of Appeal held that the lands at issue were constructively expropriated as of 2013 due to the degree of restrictions on use. In 2017, the appellants submitted a claim for compensation. The City rejected the claim. The parties disagreed over whether the land should be valued based on prospective residential use or based on the existing restrictive watershed zoning. In 2018, the City applied to the Board to determine the appropriate compensation. The matter proceeded by way of stated case. In 2020, the Board issued its decision as to the applicable compensation assessment principles. That decision was appealed by the Lynches. Additionally, the appellants sought interim compensation for interest and professional expenses incurred in pursuit of their rights between the constructive expropriation in 2013 and the Board’s order to proceed by way of stated case in 2018, as the City had the benefit of the lands during that period. The Board found that although the Expropriation Act conferred jurisdiction to award interim compensation, no such award was warranted in this instance. The Board ruled that such matters were to be determined at the end of the compensation hearing. The Lynches appealed.

HELD: Appeal allowed. The Court of Appeal had jurisdiction to entertain an appeal from an interim order by the Board given the broad general language in the Expropriation Act’s appeal provision, s. 32(5), and the absence of any express exclusion of appeals from interim awards. In addition, the Act’s underlying intent of fully compensating owners of expropriated lands encompassed the potential for an appeal from a decision made during a Board proceeding prior to an ultimate decision. The interlocutory nature of the appeal was not a sufficient basis for an exercise of discretion declining to hear the appellants’ appeal. The Board erred in its approach to the appellants’ claim for interim compensation by failing to adopt a framework of relevant and proper considerations for such an award, and by failing to apply such considerations, particularly related to the issue of delay, to the facts before it. The record was sufficient for the Court to determine the matter. The general principle that a landowner was entitled to interest on compensation from the time of the compulsory taking favoured an award of pre-award interest given the appellants’ relatively strong claim for compensation and the absence of a serious question affecting such entitlement. The appellants were entitled to an interim award of 50 per cent of professional expenses incurred in furtherance of their claim, reflecting the delay and potential financial impact without prejudice to claims for additional amounts covering the interim period, or the City’s ability to argue the relevant expenses should be disallowed or reduced.

Lynch v. St. John's (City), [2020] N.J. No. 183, Newfoundland and Labrador Court of Appeal, J.D. Green, F.P. O'Brien and W.H. Goodridge JJ.A., September 11, 2020. Digest No. TLD-October122020001