Thursday, November 27, 2008

Mr> Caldwell knew that their appraisers report indicated a value of the property of a little over $100,000.00.

The court is asked to determine reasonable legal, appraisal and other costs incurred by the McLeods.


The right to be compensated for legal and appraisal costs is derived from the Expropriation Act. It is based on the proposition that the taking of property is the ultimate exercise of government authority and constitutes a significant interference with a citizen’s property rights – Dell Holdings Limited v. Toronto Area Transit Operating Authority 1997 CanLII 400 (S.C.C.), [1997] 1 S.C.R. 32. Consequently, the person whose property has been taken should be compensated both for the loss of property and the costs to establish this loss.

The filing of a lien under the Mechanics Lien Act is an extraordinary remedy, akin to obtaining an Ex Parte Court Order, or more so. There must be a strict adherence to the process as well as to the legislated requirements which must be met before a valid lien is filed. Because the property owner does not have an opportunity to be heard prior to the filing of a Lien, the creditor’s affidavit must be exact, in all aspects. The legislation must be given a strict interpretation. (See Wabco Standard Frame Inc v. Sobeys Inc., 1997 CanLII 9565 (NB C.A.), 1997 CanLii 9565 (N.B.C.A.) per Hoyt, C.J.N.B.)

[13] The Respondent has compared this application to the procedures set out in the N.B. Rules of Court for summary judgment. The New Brunswick Court of Appeal has been clear in repeating the criteria which must be established before granting summary judgment. (See Shoreline Systems Ltd. V. New Brunswick, 2001 N.B.C.A. 29 (CanLii) per Drapeau, J.A. for a useful review of New Brunswick decisions on point.)

[14] As well, the issue of proper affidavit evidence was discussed in Richard A. Harris and HAR Construction

This right to costs is contained in Section 52 of the Expropriation Act:

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.

Section 52.1 of the Act deals with other offers of settlement.

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.

At the hearing of this matter counsel for the McLeods argued that I should disregard the formal offer made by the Province prior to the trial . It was submitted that there is no provision for a formal offer pursuant to the Rules of Court and in any event the offer was not accompanied with the cash so it was invalid under the Expropriation Act.

Sections 52.1 and 52(2) of the Act clearly contemplate the making of offers. In fact the parties should be encouraged to resolve these matters prior to trial. I was not pointed to any prohibition which would preclude the filing of a formal offer under Rule 49 of the Rules of Court. I am therefore of the view that the court can consider such an offer.

The solicitor for the Province carried out an extensive review of the legal account and appraisal fee. She points out that in addition to the two lawyers involved in the matter the law firm used ten support staff made up of paralegals and secretaries. Mr. Caldwell billed 459.6 hours while Mr. Nesbitt billed 345.7 hours. While all of these hours were being billed, and ten support staff were beavering away on the file, the lawyers knew that their appraisers report indicated a value of the property of a little over $100,000.00.

After a review of all the material supplied and considering the complexity of the matter, I feel that the account of Patterson Palmer Hunt Murphy to be excessive and unreasonable.

In addition, Mr. Caldwell was aware that Mr. Goodwin was not experienced in business valuation. However, a large portion of his report consisted of two business proforma scenarios for blueberry production. Mr. Goodwin at trial was not qualified to give expert opinion in the field of business valuation. Again, counsel for the Province analysed the account of Mr. Goodwin and concluded that 55% of his report related to the preparation of his business proforma calculation. As was pointed out in my reasons for judgement, there were numerous errors in these calculations which required recalculation. As well we do not have justification for the time spent at discovery and at trial by Mr. Goodwin.

In the circumstances of this case I find that Mr. Goodwin’s account is excessive and unreasonable.

In the Bill of Costs of the Applicant certain expenses are set out. I proposed to deal with each one of those.

1. Summons to witness fees



2. Process Service fees



3. Travel, Meals, Parking & Accommodation



4. Other Expenses



5. Discovery Transcripts



This resulted in the total allowable expenses of $9,575.06. Following the hearing the Applicants advised that the travel, meals, parking and accommodation figure had been reduced. Because I have not allowed any amount under this heading nothing changes.

Another issue to be resolved relates to interest to be paid for Mr. McLeod’s time. In my reasons for judgment I allocated $3,000.00 for this times. This was an arbitrary amount. I believe $3,000.00 was fair compensation to McLeod. It would also be difficult to determine the interest because the time was accumulated over the life of the matter. I therefore, disallow interest on the $3,000.00.

Finally there is the matter of the interest cost incurred by Mr. McLeod to pay a portion of the appraisers fees. I am of the view that this is not an appropriate expense. The Province will be paying interest on the amount awarded which is sufficient and the appraiser and the lawyers should wait for their fees because they are almost guaranteed their reasonable fees under the legislation.

As I indicated earlier, I intend to give a global figure for legal and appraisal cost which I believe to be reasonable in this case. I find that $55,000.00 is an appropriate amount for legal fees. Added to that amount would be H.S.T. and the allowable expenses outlined above makes the total $72,825.06. I have considered the appraisal costs and conclude that the sum of $25,000.00 inclusive of expenses plus H.S.T. is reasonable and appropriate which makes a total appraisal account of $28,750.00.

Mr. Caldwell in his article “Forensic Expropriations “ says:

Notwithstanding that the client hopes to pass on all of the expert’s account to the expropriating authority, the authority is usually only responsible for paying all “reasonable” accounts of experts. There may be excess charges in the expert’s account which are not recoverable from the authority and which may well have to be borne by the client. This, too, needs to be stipulated in the retainer agreement. What is reasonable must be distinguished from what is excessive, i.e. not recoverable even from the client.

I found that the legal and appraisal cost were excessive. Consequently the cost not approved herein should not be recoverable from the McLeods.


I order the Province of New Brunswick pay the following to Richard Winslow McLeod and Shirley Lynn McLeod.

a) the sum of $362.25 on or before June 30, 2000.

b) the sum of $15, 228.84 on or before June 30, 2000.

c) the sum of $72,825.06 within a reasonable time.

d) the sum of $28,750.00 within a reasonable time.


George S. Rideout

Justice of the Court of Queen's Bench of New Brunswick

June 22, 2000

Moncton, N.B.


Howard A. Spalding, Q.C., on behalf of the Plaintiff

Lawrence E. Veniot, on behalf of the Defendants



[1] The Plaintiff claims the Defendants are in breach of their obligation to pay certain property taxes pursuant to an agreement of purchase and sale of vacant land.


Kenneth B. McCullogh, Q.C., appearing on behalf of the plaintiff

James L. Mockler, Esq., appearing on behalf of the defendant



[1] In this action, the plaintiff claims damages from the defendant for breach of contract.

[2] Air Liquide Canada Inc. (“ALC”) operates a business of supplying industrial gas. It produces nitrogen and oxygen and sells these products either in bulk or in cylinders.

[3] In order to transport its products in bulk, ALC manufactures them in liquid form and transports them to end users by bulk carriers. The defendant, Ichiboshi, is one of those end users.

[4] Ichiboshi owns and operates a crab processing plant in Caraquet, New Brunswick. It requires liquid nitrogen to run its operation during the fish season which is roughly from the first of May until October of each year. The liquid nitrogen is used to freeze the fish and prepare it for shipment to world markets.

No !3 DATE OF DECISION: October 30, 2007

COUNSEL: A. Gordon Shepard

for the Plaintiffs

Allen Miles

for the Defendants


McLellan, J.:

1. “Only the Lord himself knows just how the lower field was divided” wrote the late Roger E. Spear, Sr. (1898-1976) to the late Mildred Brownrigg Haughn (1908-1999) on March 27, 1966 concerning a possible trespass by a wood cutter named Garfield Taylor. (Ex. P-1, page 27). The possible trespass was on waterfront land on Bocabec Cove, Big Bay, Passamaquoddy Bay, Charlotte County, near St. Andrews, NB.

2. By this Quieting of Title proceeding the plaintiffs (the woodcutter’s daughter-in-law Theresa Marie Taylor, the late Mr. Spear’s son Roger E. Spear, Jr. and daughter Joyce Marshall and their cousin Edward H. Dawson) ask the court to determine the western boundary line of the parcel of land from which their properties were created on the partition in 1913 of the Dawson Estate. According to their deeds, the Dawson Estate had acquired lot 13 granted by the crown in 1784 as part of the Penobscot Association Grant.

3. The defendants are Lewis Herbert Stoddard and Freda Stoddard (successors in title of the late Mildred Haughn) and other neighbours, the Estate of John S. Brownrigg and Cebacob Holdings Ltd. According to their deeds, they owned grant lot 14, to the west of the Dawson Estate.


4. The late Mrs. Haughn and her father Albert Brownrigg resided on crown grant lot 14, adjacent and to the west of lot 13. Their house was built by their ancestors in 1860 and is across highway 127 from the lower field, which is now wooded.

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