Decision date: | July 18, 2000 | |||
Court: | ||||
Cited: | (2000), 71 L.C.R. 109 | |||
Reviewer: | ||||
Interest: | none | |||
Babineau, Daniel is the Appraiser I use in court. He has my loss under this sections of the Act in his report. |
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45 Where a business is located on the land expropriated, disturbance damages include damages
(a) for business loss resulting from the relocation of the business made necessary by the expropriation, and unless the owner and the expropriating authority otherwise agree, the business loss shall not be determined until the business is relocated and has been in operation for nine months, or until a two year period has elapsed, whichever occurs first; or
(b) where the Court is of the opinion that it is not feasible for the owner to relocate his business or a part thereof, for business loss resulting from the cessation of the whole or part of the business made necessary by the expropriation, but compensation shall not be awarded under this clause where the owner of the business is awarded compensation for the land upon which the business was located on the basis of a use other than the existing use to which the land was being put.
46 A statutory authority shall compensate the owner of land for loss or damage
caused by injurious affection
47(1) Subject to subsection (2), a claim for compensation for injurious affection shall be made by the person suffering the damage or loss in writing with particulars of the claim within one year after the damage was sustained or after it became known to him, and, if not so made, the right to compensation is forever barred.
47(2) Where the person who is injuriously affected is a minor, a mental incompetent or a person incapable of managing his affairs, his claim for compensation, if not made on his behalf within the period stipulated in subsection (1), shall be made within one year after he ceases to be under the disability or, in the case of his death while under the disability, within one year after his death, and if not so made the right to compensation is forever barred.
1973, c.6, s.47.
48 The value of any advantage to the land or remaining land of an owner derived from any work for which land was expropriated or by which land was injuriously affected shall be set off only against the amount of the damages for injurious affection to the owner's land or remaining land.
1973, c.6, s.48.
49(1) Subject to subsection (2), where only part of the interest of a lessee is expropriated, the lessee's obligation to pay rent under the lease shall be abated pro tanto.
49(2) Where all the interest of a lessee in land is expropriated or where part of the lessee's interest is expropriated and the expropriation renders the remaining part of the lessee's interest unfit for the purposes of the lease, the lease shall be deemed to be frustrated from the date of the expropriation.
1973, c.6, s.49.
50(1) Subject to subsection 37(3), the owner of land expropriated is entitled to be paid interest at the rate of six per cent a year
(a) on the portion of the compensation payable and outstanding from time to time in respect of the market value of his interest in the land, and any special economic advantage not reflected in the market value, calculated from the date the expropriating authority took possession of the land, except in the case of an owner in occupation of the land in which case interest is to be calculated from the date the owner ceased to reside on or make productive use of the land;
(b) on the portion of the compensation payable and outstanding from time to time in respect of damages for injurious affection or for distrubance, calculated from the date any such damages were incurred; and
(c) on the portion of the compensation payable and outstanding from time to time in respect of sections 42 and 43, calculated from the date of expropriation.
50(2) Subject to subsection (3), where the Court is of the opinion that any delay in determining the compensation is attributable in whole or in part to the owner, it may refuse to allow him interest for the whole or any part of the time for which he might otherwise be entitled to interest, or may allow interest at such rate less than six per cent a year as appears reasonable.
50(3) Interest to which an owner is entitled under subsection (1) shall not be reduced for the reason only that the owner did not accept the offer made by the expropriating authority, notwithstanding that the compensation as finally determined is less than the offer.
50(4) Where the Court is of the opinion that any delay in determining compensation is attributable in whole or in part to the expropriating authority, the Court may order the expropriating authority to pay to the owner interest under subsection (1) at a rate exceeding six per cent a year but not exceeding twelve per cent a year.
50(5) The Lieutenant-Governor in Council may from time to time establish a rate of interest, in excess of six per cent a year, in place of the rate of six per cent a year referred to in this section and in such case any reference to six per cent in this section shall be read as a reference to the rate established by the Lieutenant-Governor in Council.
1973, c.6, s.50; 1974, c.13(Supp.), s.4; 1983, c.31, s.28.
51(1) Where an owner is awarded as compensation an amount less than the amount tendered by an expropriating authority and accepted by him, he shall repay to the expropriating authority an amount by which the amount tendered by the expropriating authority exceeds the amount of compensation and costs awarded by the Court.
51(2) Where an owner does not repay the amount referred to in subsection (1) within thirty days after the date of the award by the Court or within such period as is agreed to by the expropriating authority, he shall be liable to pay interest thereon at the rate of ten per cent per annum, calculated from the date of the award.
1973, c.6, s.51; 1983, c.31, s.29.
52(1) The Court shall award costs on the basis of the following rules, namely:
(a) where the compensation awarded by the Court exceeds the amount offered by the statutory authority, the statutory authority shall pay the legal, appraisal and other costs reasonably incurred by the owner in asserting his claim to compensation, and
(b) where the compensation awarded by the Court does not exceed the amount offered by the statutory authority, the costs shall be in the discretion of the Court on such basis as the Court considers just,
and the Court shall determine what are reasonable costs and shall fix the amount of costs to be paid by or to the statutory authority.
52(2) For the purposes of subsection (1), the Court shall have regard to the most recent offer of settlement of the compensation payable, if any, made by an expropriating authority or a statutory authority not less than ten days before the commencement of the hearing in respect of the notice of arbitration or, where the hearing is adjourned, not less than ten days before the hearing reconvenes.
52(3) Subsection (2) applies
(a) to proceedings in respect of any notice of arbitration outstanding on the commencement of this subsection, where the proceedings have not been settled or there has been no final judgment on the commencement of this subsection, and
(b) to proceedings in respect of any notice of arbitration filed or served after the commencement of this subsection.
1973, c.6, s.52; 1983, c.31, s.30; 1997, c.24, s.1.
52.1(1) An expropriating authority or a statutory authority may at any time make an offer of settlement of the compensation payable in response to a notice of arbitration.
52.1(2) An offer of settlement made under subsection (1) may be based on any or all of the aspects of compensation specified in subsection 38(1).
1997, c.24, s.2.
53 A statutory authority may make and perform an agreement with an owner in respect of any claim of the owner under this Act, including any costs of the owner and notwithstanding that this Act requires the claim to be determined by the Court.
1973, c.6, s.53; 1983, c.31, s.31.
54 Where the land has been expropriated, the compensation agreed to or determined under this Act stands in the stead of the land, and any claim to or encumbrance on the land is, as respects the expropriating authority and the Crown where the expropriating authority is a Minister of the Crown, converted into a claim to or upon the compensation and no longer affects the land.
1973, c.6, s.54; 1975, c.21, s.8; 1982, c.3, s.25.
55(1) In any case where the statutory authority considers it advisable, it may, without an order, pay into the Court any amount required to be tendered to an owner, or any compensation agreed upon with the owner or determined by the Court, together with a sum equal to the interest thereon at the rate of six per cent a year for six months.
55(2) Upon an application for payment out of court of the compensation paid into court, the Court may direct that such notice of the application be given by publication or otherwise as it considers proper and may direct the trial of an issue or make such order with respect to the payment out of court of compensation and as to costs it considers reasonable.
55(3) Where an order is obtained under subsection (2) in less than six months after the payment of the compensation into court, the Court may direct that a proportionate part of the interest be returned to the statutory authority.
55(4) Where unborn issue or an unascertained person or class is interested in compensation paid into court, the Court may appoint such person as it considers proper to represent them, and any order made under this section is binding upon them.
1973, c.6, s.55; 1983, c.31, s.32.
56 The Lieutenant-Governor in Council may make regulations
(a) establishing an amount for the purposes of subsection 17(5);
(b) Repealed: 1983, c.31, s.33.
(c) prescribing forms for the purposes of this Act and providing for their use;
(d) Repealed: 1983, c.31, s.33.
(e) prescribing procedures to be used before the Court acting under Part II of this Act; and
(f) generally, for the better administration and carrying out of the purposes and intent of this Act.
1973, c.6, s.56; 1983, c.31, s.33
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