Sunday, February 15, 2009

look like i have to pay the government to take my property





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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


The Honourable Justice Larlee

The Honourable Justice Richard

The Honourable Justice Quigg


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

Look at what i was paid for this property in back of two legal size building lots

Judge David Russell Quotes 2005 [56] Mr. Carter correctly utilized the Direct Comparison Approach and correctly analyzed available market data. Approximately 86.5% of the parent lot remains for future development with substantial access to the Broad Road. I conclude the value placed on the expropriated portion of the parent lot by Mr. Carter is appropriate as is his finding there was no injurious affection. The value of the H.A.R. lands taken is, therefore, $2726.00.

? mr Carter also did a report that said this same property H.A.R. Lands was $ 36,000.00 ? why did not Douglas Caldwell or

Representation of Parties at Trial:

Douglas A. Caldwell, Q.C. ) for the Applicants.

Robert H. Pineo, Esq. )


David Eidt, Esq. ) for the Respondent. John S Raymond

for the tax payer payer ? take look at my lawyers bill to the Government government

$ 212,000.00

so why did not the lawyers not ask for this edvient to be put forth in Court in March of 2005 when they be came a ware of this report ? for $36,000.00 ? so why did these apple Judges

not give me relief in this hearing of the above ?? i would guest ? that Caldwell & pineo would not had a chance to get any of the Taxpayer money ? and my Action on the Goodwin matter would of been in my favors ? so what left for me now ??????


The Honourable Justice Larlee

The Honourable Justice Richard

The Honourable Justice Quigg

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:


Procédures préliminaires ou accessoires :


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 appeal is dismissed with costs of $3,500.


Rejette l’appel avec dépens de 3 500 $.

The judgment of the Court was delivered by


[1] The appellant, Richard Harris, appeals one aspect of a decision of the Court of Queen’s Bench, which fixed compensation pursuant to theExpropriation Act, R.S.N.B. 1973, c. E-14, for a partial taking of land for a highway widening project. The decision is reported at2005 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 theAct:

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, 2nd ed. (Toronto: Carswell, 1992) at 218-19; R.P.B. Construction Ltée. v. Nouveau-Brunswick (Ministre des Transports)  (reflex-logo) 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 can you be leave this could be going on in Canada >/.... ??? send your story to me.


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