Did not address the mairet in this Appeal

COURT OF APPEAL OF COUR D’APPEL DU

NEW BRUNSWICK NOUVEAU-BRUNSWICK

100-05-CA

RICHARD A. HARRIS APPELLANT		RICHARD A. HARRIS APPELANT
- and -		- et -
HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF NEW BRUNSWICK, as represented by the MINISTER OF TRANSPORTATION RESPONDENT		SA MAJESTÉ LA REINE DU CHEF DU NOUVEAU-BRUNSWICK, représentée par le MINISTRE DES TRANSPORTS INTIMÉE
Harris v. The Queen as Represented by the Minister of Transportation, 2008 NBCA 82		Harris c. La Reine, représentée par le ministre des Transports, 2008 NBCA 82
CORAM: The Honourable Justice Larlee The Honourable Justice Richard The Honourable Justice Quigg		CORAM : L’honorable juge Larlee L’honorable juge Richard L’honorable juge Quigg
Appeal from a decision of the Court of Queen's Bench: June 3, 2005		Appel d’une décision de la Cour du Banc de la Reine : Le 3 juin 2005
History of Case:		Historique de la cause :
Decision under appeal: 2005 NBQB 197 (CanLII), 2005 NBQB 197		Décision frappée d’appel : 2005 NBBR 197
Preliminary or incidental proceedings: N/A		Procédures préliminaires ou accessoires : s.o.
Appeal heard: October 15, 2008		Appel entendu : Le 15 octobre 2008
Judgment rendered: November 20, 2008		Jugement rendu : Le 20 novembre 2008
Reasons for judgment by: The Honourable Justice Larlee		Motifs de jugement : L’honorable juge Larlee
Concurred in by: The Honourable Justice Richard The Honourable Justice Quigg		Souscrivent aux motifs : L’honorable juge Richard L’honorable juge Quigg
Counsel at hearing: For the appellant: David H. Dunsmuir For the respondent: David D. Eidt		Avocats à l’audience : Pour l’appelant : David H. Dunsmuir Pour l’intimée : David D. Eidt
THE COURT The appeal is dismissed with costs of $3,500.		LA COUR Rejette l’appel avec dépens de 3 500 $.

The judgment of the Court was delivered by

LARLEE, J.A.

[1] The appellant, Richard Harris, appeals one aspect of a decision of the Court of Queen’s Bench, which fixed compensation pursuant to the Expropriation Act, R.S.N.B. 1973, c. E-14, for a partial taking of land for a highway widening project. The decision is reported at 2005 NBQB 197 (CanLII), (2005), 283 N.B.R. (2d) 184, [2005] N.B.J. No. 220 (QL), 2005 NBQB 197.

[2] The respondent argues that Mr. Harris cannot maintain an appeal because the land that is the subject of this appeal was owned at the time of the expropriation by H.A.R. Construction Limited, Mr. Harris’ corporation. Section 1 of the Act defines owner as including “… any person holding an estate, easement, license or other right or interest in, to, over or affecting land.” The duty of a statutory authority to compensate is found at Part II, s. 25 of the Act:

Where land is expropriated or injuriously affected, or where property other than land is taken, interfered with or injured under authority of a statute that requires compensation to be paid, the statutory authority shall pay each owner compensation determined in accordance with this Part.

[Emphasis added.]

[3] Section 31(1) of the Act provides that where a statutory authority and an owner have not agreed upon compensation payable under the Act in respect of the expropriation or injurious affection authorized by the Act, either the statutory authority or the owner may apply to the Court of Queen’s Bench to settle any dispute between them by serving upon the other of them and the Court a notice of arbitration.

[4] Section 31(3) of the Act provides that a notice of arbitration shall state the name of the owner. The notice of arbitration named both H.A.R. Construction Limited and Richard Harris as owners. The Act does not differentiate between corporations and natural persons as owners. The style of cause in the application named H.A.R. Construction Limited, Richard Harris, and Richard James Joseph Harris as applicants. H.A.R. Construction Limited is not a party to this appeal, yet the land in question in this appeal, Lot 97-3 (part of PID #60047644, DOT Plans 12-2-0036 and 12-2-0037), is land in which H.A.R. Construction Limited held “… an estate, easement, licence or other right or interest in, to, over or affecting land” within the meaning of owner under the Act. There was no evidence before the Court, on the hearing of the arbitration, that Mr. Harris had any such interest in the land in question. The evidence is that after the expropriation, the land was transferred by deed on December 13, 1999, from H.A.R. Construction Limited to Mr. Harris’ son, Richard James Joseph Harris. For all intents and purposes the company is no longer in existence. I agree with the respondent that Mr. Harris has no capacity to appeal the decision of the Court of Queen’s Bench in place of H.A.R. Construction Limited. Therefore, this Court is without jurisdiction to hear the appeal, and I would dismiss it.

[5] That said I would have dismissed the appeal, in any event, on the merits. I am of the view that the application judge did not make a palpable and overriding error in coming to his decision. Briefly, here are the reasons.

[6] In 1993, Mr. Harris and H.A.R. Construction Limited acquired a 12.66-hectare parcel of land for $25,000. In December of 1996, the Department of Transportation advised Mr. Harris by letter that it intended to survey the lands for possible use in the construction of the new Trans-Canada Highway. In January of 1997, Mr. Harris filed a plan to further subdivide the land, but the Rural Planning District Commission refused approval of the plan. In September of 1997, the Province sent a Notice of Intention to Expropriate, and repeatedly revised the amount offered for the parcels to be taken, based on appraisal reports and reflecting “the development potential of the property.” On June 20, 2000, Mr. Harris filed a Notice of Arbitration, claiming $909,614.65 for loss of investment, loss of future income, and remediation costs.

[7] A number of parcels of land were involved in this expropriation. The application judge quantified each parcel of land, and awarded, for the land itself and as reimbursement for site preparation work, site clean-up work, and costs of a culvert, $52,846.65 plus interest, less the $20,726.00 the respondent had already paid. With respect to the parcel of land that is the subject of this appeal, Lot 97-3, the application judge rejected Mr. Harris’ claim for business loss, and held that the subdivision plan had been “prepared to bolster his claim for compensation in face of the impending expropriation.” He found that the value of the land taken was $2,726.

[8] In his decision, the application judge identified and applied the principles that govern an assessment of this type. Specifically, he used the comparative sales or market data approach to valuation instead of the land development subdivision approach. In rejecting the latter method he relied on Eric Todd, The Law of Expropriation and Compensation in Canada, 2^nd ed. (Toronto: Carswell, 1992) at 218-19; R.P.B. Construction Ltée. v. Nouveau-Brunswick (Ministre des Transports) reflex, (1995), 168 N.B.R. (2d) 365 (Q.B.), [1995] N.B.J. No. 519 (QL) and Sutherland v. Langley (Township) (1997), 39 M.P.L.R. (2d) 277 (B.C.S.C.), [1997] B.C.J. No. 1716 (QL). See also Maguire v. Province of New Brunswick (1976), 13 N.B.R. (2d) 624, rev’d on other grounds (1976), 16 N.B.R. (2d) 189 (C.A.), [1976] N.B.J. No. 249 (QL).

[9] The application judge assessed the evidence, accepted the evidence of certain experts, and made findings of fact that are supported by that evidence. I am unable to discern any error that would justify appellate intervention, and in fact, am in substantial agreement with the reasons given by the application judge.

[10] For the reasons set out in paragraphs 1-4, I would dismiss the appeal and order costs of $3,500.