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EXPROPRIATION - Injurious affection - Damages - Methods of determining compensation

Thursday, September 16, 2021 @ 5:29 AM  

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Appeal by the property owners from a decision of the Utility and Review Board that the Province’s construction of a temporary replacement bridge on a highway did not cause flood damage to their property. The appellants’ property was on the east bank of the South River, downstream but near a bridge on the highway which formerly crossed the river. A temporary bridge was constructed very close to the appellants’ property to allow traffic to continue to use the highway while a permanent replacement was being built downstream. The flooding stopped after all infill related to that construction was removed. The appellants claimed the bridge replacement project blocked a floodplain channel which previously took rising waters in the South River into a floodplain and away from their property and sought compensation for injurious affection in accordance with the Expropriation Act. The Province denied that it caused the flooding and that the appellants sustained any flooding of their home at all. The appellants convinced the Board that their property and buildings were inundated with flooding, but the Board found the appellants did not prove their flooding would not have occurred but for the Province’s construction. The Board allowed the appellants’ claims for nuisance and inconvenience of the Province’s construction work for which the appellants were awarded $20,000. The appellants argued the damages for injurious affection were too low. The appellants argued the Board erred in its assessment of causation because the Board applied an incorrect standard of proof, applied the wrong causation test, misconstrued the evidence, and improperly gave weight to evidence that lacked probative value.

HELD: Appeal allowed in part. The appellants established a prima facie case of causation. The matter was remitted to the Board for an assessment of damages for injurious affection arising from the flooding which engulfed the structures on the property. The Board did not err in applying the but for causation test. The material contribution test only applied where it was impossible to say that a defendant caused the injury or damage. The Board correctly identified the legal test of prima facie causation, but then failed to properly apply that test to the facts it had found. This amounted to an extricable error of law. The Board’s rejection of the appellants’ theory of causation did not dispose of the obligation to assess whether the evidence otherwise supported an inference of causation. The Board ignored clear and material evidence of prima facie causation. Having accepted the appellants’ evidence and having rejected the Province’s expert opinion that flooding was never as high as the appellants claimed, there was a prima facie case to answer. That case was supported by the Province’s own expert. Having rejected the expert’s opinion on causation in part because it did not account for a water level that the Board found occurred, it should have followed that the expert’s concession of causation based on novelty of flooding post-construction also supported a prima facie case of causation. There was no basis for varying the damages awarded.

Partridge v. Nova Scotia, [2021] N.S.J. No. 321, Nova Scotia Court of Appeal, D.R. Beveridge, P. Bryson and C.A. Beaton JJ.A., August 4, 2021. Digest No. TLD-September132021007