Friday, October 19, 2007

the letter to the Premier's office

February 16,2007

To David D. Eidt, Esq.

Office of the Attorney General 721 Irvine st.#40

670 King Street E3A-3E4

Room 444, Centennial Building

Fredericton New Brunswick

E3B-5H1

Dear Mr. David Eidt, Esq. [who is he] (Government Lawyer that was just hired on in 2001, fact about this, Rex Tucker daughter was his secretary when this lawyer Eidt, was in private-practice

??? Did Rex Tucker have smoothing to do with Eidt getting his Government Job. ? Who is Rex Tucker.

What kind of a person that would write 377 pages of E-mail to your lawyers ,? Arrange meeting with the Government, for you, arrange meeting with your lawyers and a appraiser, in Moncton . knowing this Appraiser had a bill over your head for 70,thousand dollars, a draft report that said the market vale of the property taken was worth $5,300.00 dollars. This is after he already in basil $21,000.00 from you.

On February 12, 2007 when we were in Court on the matter of the appeal on court file, NO; F/C/328/00, /????

(see Court order at canlii.org )( search Richard Harris in N.B.Court of Appeal.)

I showed you a letter that I had received, from the Law Society of New Brunswick, it was a letter to Jamie Eddy, from Robert Pineo, where he is updating Mr. Eddy, on my expropriation case files. (No; F/C/328/00), am I correct?

I don’t think they are representing me on the Goodwin matter court file,

which was imposed on me because of the expropriation matter.

It should have been obvious to the government employee, Steven Lablanc , John Raymond, Sheldon Lee, (assuming that they were taking into account my best interests.) that, they would be putting a stop to my self-employment on February 12, 1997.? Why did I buy this property,when was the highway plane change ; ? when was the survey work done for this change. Who would beneficent from this Change of location ,

I hold that since the Appraiser Society of New Brunswick and all the lawyers involved in the expropriation cases at this time were heavily dependent on government contracts and so were not motivated to act in the best interests of the public who were having their lands expropriated.

In essence an inherent conflict of interest existed.

The Government gave large amounts of money to set up a contractor company. MRDC and the Company law firm Patterson Palmer Hunt Murphy.

If they ran in to any difficult property owners, they would bully the land owners around until they were forced to quit their claim due to mental exhaustion or financial ruin.

Douglas Young (ex Ottawa Minister, also lawyer of the third biggest Atlantic Canada law firm,

also head of MRDC at that time), seems to have operated on a principle tactic of force and control. Many land owners who were financially challenged or poorly educated were at greater risk of being financially savaged.

Douglas Caldwell, a NS lawyer, who was and still is working for the same law firm.

Doug Young, is affiliated with advertised that he would not charge for representing the client ascertaining that he was being funded by the expropriation act.

Lawyer Caldwell set up meetings with people that would be or might have been losing Property.

(This is how so people were getting hook up with Caldwell.

I suspect MRDC or DOT, must have been giving the names of property owner to the Caldwell,

I think if there were an investigation on this matter you will find out this lawyer handled approximately 70% of the N.B. Expropriation cases.

Mr. Caldwell was telling people at meeting that under the Expropriation Act, he would be paid all legal and expert’s costs.

See Attachment January 19, 1998 RETAINER AGREEMENT to Richard Harris. [Atlantic Canada Lawyers]

The Retainer Agreement of two page, that more or less stating the fees and Costs will be the responsibility of the Provincial Government,

whether the billings are forwarded directly to the client or through Patterson Palmer Hunt Murphy.

On the Second page of the retainer agreements, where the party would sign, it says.

[“Should you have any questions regarding our representation of your interests, at any time, do not hesitate to contact us.” ]

The Clients were unlikely get any letters from the Nova Scotia lawyer until it was being too late to do any good.

Letters from the N.S. Lawyer that had Douglas Young’s name on it would not be received from the N.S.Lawyer,untill after they would have signed the contract, or retainer agreement.

By the time most property owners would have found out, that there could be an ethical conflict of interest.

Property owners would all ready owe money to the N.S. Lawyer.

(Look at there Bill of costs from October 31/97 to January 15, 1998.) ? N.S.lawyer had bill even befor he was hire on.??? (bill of Costs)

That went to the N.B.Government on March 19/2006. Goodwin 70, thousand bill was not part of it.??

Think about this did not hire this N.S. lawyer until January 23/1998.

But what is even more importance the date on the Retainer Agreement of January 19/98, is the day this Nova Scotia Lawyer knew for sure I was changing lawyers.

But what is really more important is testimony of the Appraiser Malcolm Carter in court on March of 2005, he said that he turned a subdivision development approach

report of value in to D.O.T. on January, 23, 1998. Also he said he did not know why he did this, because he doesn’t know how to do a subdivision approach to value.

A investigation or inquiry would more then likely show that the Government set the stage for the land taking in 1995, when they incorporated on January 1, 1995, when the province of New Brunswick’s Legislative Assembly passed bill 17, Chapter 108 of provincial legislation; the Act to incorporate the New Brunswick Association of Real Estate Appraisers thereby creating an inherent conflict of interest.

What did this do? It put all the N.B. Appraisers in an organized group, a gang, a group to intimidate property owners.

The Government gives out or controls about 90% of all work for Appraisers.

Now look at one of the top Appraisers of D.O.T. of the N.B. Appraisers gang ,

Yes it is John S Raymond . He not can only intimidate Property owner but also can intimidate the Appraisers in the Association of Real Estate Appraisers,

(if they Appraisers want Government Work.)

Who but the Government would paid a Appraiser over 10,thousand Dollars to justified paying a property owner a cheque of 20.thousand.

Now the way the legal system is set up by all Lawyers, if you need to changes lawyer you will have to pay the first Lawyer off, before another lawyer will take over your file,

thereby preventing the property owner from getting adequate counsel if they find that they are receiving inadequate representation.

The logic here is the public didn’t know that in N.B. you should hire a NB Lawyer when you get in a matter like what I was involved in. (I did not find any of this out until 1999. ? to late, ? my cost started before February 12,1997.

But I was asking questions to the Government even in the summer of 1998, about the conflict of interest between MRDC, lawyers and the Government.

Why I am saying this is because in August of 2001, having had time to look over the Government documents that was on John S Raymond affidavit list that I received in October of 2000, I discovered he was writing letter to the Law Society of New Brunswick, See attachment.

To the N.B. Law Society, July 17, 1998 Dear Mr. Carrier. From planning and Land Management Sincerely John S. Raymond [Assistant Director].

I enclose a copy of a letter, dated May 28, 1998, from Mr. Douglas A. Caldwell (Solicitor with Patterson Palmer Hunt Murphy) to the Hon. Sheldon Lee, Minister of Transportation.

Mr. Caldwell advised that he is legal council to H.A.R. Construction, and to Richard and Marilyn Harris, Oromocto, N.B.

Now apparently John S.Raymond doesn’t know about Mr. Caldwell doing Expropriation files in NB.

Look at this Attachment (M/M/206/96) the McLeod V. N.B. See Canlii.org. What is really funny here is that Mr. Raymond was not only getting letters from Mr. Caldwell, he was also receiving lots of letters from my New Brunswick Lawyer John B.D. Logan.

Was Raymond writing letters to the Law Society also on the McLeod case, or would this letter have soon thing to do with the Pleading of May 28, 1998, or with what Richard turned in on February 24, 1998. That ended up as an exhibit, NO; 14 from Discovery of 2001.

Today is Monday 19, 2007 and I won’t have any more time to work on this letter.

I just faxed a six pages motion to Mr. Goodwin Lawyer. Hugh J. Cameron and not 25 min past and there was a S.A.Deliveries agent at my door, getting me a sign for Letter.

Attachment Stewart McKinley Re; Court File No; F/C/187/04.

But I will say this, before the trial in March of 2005;

I faxed a copy of the Action of Goodwin to Robert Pineo and Caldwell, instructing the Lawyers to enter this as a tab on the applicant’s Exhibit book list.

(Fact this ended up on the respondent Exhibit book in trial)

I faxed this action on Mr. Goodwin and along also a 13 pages background report that I prepared for the Lawyer, my ex-lawyers or the lawyers that I did not have fighting for my Company or self at the trial in March of 2005.

I told the lawyers Mr.Pineo, Mr.Eddy, and Mr. Caldwell that I had requested the Goodwin Action that was served on him in June of 2004 be entered by my law firm’s lawyers. That now there a motion on this file number F/C/187/04 set to be heard on February 26/07.

I should have had my files back by now.

Is it only circumstancial that there was a status hearing on February 12/07 and now there a motion hearing set for the 26/07 as well.

So I am presuming that Jamie Eddy is or was my New Brunswick Lawyer. Is Robert Pineo, sending out Letter to Mr. Eddy? I guest I must be right. I’ll have you to know that on August 29, 2005, I took a heart attack and ended up having Heart Surgery.

Now I was not allowed to do any thing, on doctor’s orders till the end of December of 2005,

I also would have to move on December of 2005, due to these circumstances.

I was telling my rooming house land lord that I would be moving out west, before I took the Heart attack, to be closer to my grand daughter and daughter Aimee. I had no intention of taking the money of Judge Russell Decision of June 3, 2005. Untill I found out what I would be getting back on my costs and out of pocket expenses.

This time in November of 2005, I was being forced to change my mind due to the stress of Surgery with no driver license and my landlady all ready had my room rented out for the month of December, to a person that would be there for two years.

I was now being forced to try to get the money,

I was very distressed and unhappy that under the circumstances I found my self in, that I would have to seek money from Russell Decision.

Now in order to get payment from the Lawyers, they were telling me that I would have to signs paper for then, to give to the Government.

Before they would send the money from N.S. At first they sent out the paper an advice me to sign and return them to their office in N.S., before I would see the cheque.

I informed them then that I would not be signing any paper for them on less than the money that was to be released to me the same time.

This took about two weeks to come about.

(I did not think they would give up the money.)

On or about November 2/05 my NB lawyer Jamie Eddy had a call put to me telling me that they have a cheque for us my son and my self.

On or about November 4, 2005 we went to the Fredericton office of Patterson Palmer Law office for a meeting with Jamie C.Eddy.

Now at this Meeting Mr. Eddy had us to sign Affidavit of Execution of Release of funds.

See 9 pages of Attachment:

Now there was also a letter to your Attention:

Mr. David Eidt that was already in advance of our Meeting with Mr. Eddy, as you can see by the letter head on this Letter to you the law Firm that represents us was Patterson Palmer law, and the lawyer in NB was at this time, was Jamie Eddy, that would have us sign these paper of Release. (It was not Douglas Caldwell or Robert Pineo.)

This brings us to the question if they had no intention to put in Documents of Cost for Payment of Costs and Disbursements, to be assessed by the court if necessary.

Then my files should of have been returned on this day of November 4/2005. by Mr. Eddy.

Now in the matter of the appeal. Now Mr. Eddy being our N.B. lawyer should have known quite well if his Client, (in the case of Richard A. Harris), the results of the appeal initiated by him in the Court of Appeal, would necessitate that He would need his files as quickly as possible.

On or about September 14, 2006, I made a request to Patterson Palmer Hunt Murphy or Patterson Palmer Law, Firm. Requesting my total files as referred to the letter to Jamie Eddy,

(see letters to Caldwell of 2005 and 2006)

See Attachment of nine pages of release Document of November 4/05

See Attachment of Letter. September 14, 2006.

Robert Pineo is talking about two issues in this email letter to Jamie C. Eddy.

The first Issue is the Taxation of their bill of Costs only.

I’ll have you know

that I don’t accept this as being Legal, as you are well aware as I am, I am entitled as being the owner of this case to costs as well.

I will need at least three months to do this, put my own costs in ,once I have my files returned.

Robert Pineo not only provided a bill of costs, he also provided you, Mr.Eidt a Affidavit in March of 2006 that I was not aware of, until I received this letter from the Law Society.

He is saying this is his Affidavit, there is a law under the Expropriation Act (o.c.84-46) requiring an affidavit in order to be filed for the owner to get paid cost ,??accordingly to this case.

Now Mr.Eidt I have informed you a number of times about this Court File: File No.: M/M/206/96 ( see canlii.org) web-site.

McLeod V. New Brunswick (province) now here we got a Case with all most all the same people involved.

They are John S Raymond, Douglas Caldwell, a Government Lawyer, the appraiser Goodwin, testimony’s of Mac Carter on Jim McDonald reports that was done in 2000,

There were all most the same circumstances going on. This is evidentiary of an ongoing pattern of the landowners being strong-armed.

But what became more importance at this time is the Goodwin Matter of the up coming motion set for February 26,2007 that Robert Pineo not only provided a bill of costs, he also provided you Mr.Eidt a Affidavit in March on 2006, that I was not aware of, un- till I received this latter from the Law Society.

Now you said to me in Court on February, 12, 2007 that you would give me a copy of this Affidavit.

I would like a copy before February 22, 2007 as more then likely

I will need it on this Motion of the 26, day of February 2007.

I would like to bring this to your attention that the Goodwin Action would have not come to be if I was not in this land dispute.

( there would not be no cost to me if D.O.T. left the highway where it was in 1995. ) ?

Look at the date this highway shifted the location.?

Now at Discovery of September 11, 2001

Mr. Caldwell said he would be entering the Goodwin Bill to the Government as well.

I don’t believe this has been done. So I will be entering his costs along with mine as soon as I get my file back.

Plus all the rest of my never-ending costs that go on daily.

Do to all matter of the loss of my self-employment.

This loss started on or about February 12, 1997.

As of today February, 19, /07 this is over 10 years of outright abuse to a person.

This pattern of delay is abuse in it self.

Robert Pineo said in this Attachment Email of October 25, 2006 that I presumed he talking about you?

Counsel has agreed not to pursue the taxation until such time as the Court delivers its decisions on four pending taxations.

Am I allowed to know who these people are in Robert Pineo’s letter, as it looks like they also had a lot difficulty? I know now October 19, 2007 that there were 2 taxation heard.( See Canlii.org Rankin and Rowan file ? look at who was the N.B. lawyer on these files , look at the Appraiser.? ( you see the evident for your self,.

Now Mr.Pineo goes on to say that, one of these cases is factually similar to the Harris case,

and on a decision to act as precedent.

Well I hope that there was no successful negotiations on their bill yet, as I have not even got my files back.

I think for sure I would have the right to know who this person is, that you know my ex lawyers are justifying there $212,359.86 bill of Costs on this File. ? what about the Clint cost.

Mr. Pineo said the Second Issue is the return of the file to Mr. Harris.

Here a Question that I would like you to answer why is he tacking on an undertaken to Vet my File before returning it to the Client or to my self.

Can you not see that there is something wrong here?

Well on the 26, day of February 2007 Robert Pineo now has been at vetting my Files for over four months now.

Maybe this got a lot to do with the Goodwin matter that flowed from these four parcels of property being expropriated.

Three of these parcels, there would not even be marketable in size and shapes.

It is 5pm and I got to try to get ready for the Motion,

Your truly ___________________ _____________________

Richard Harris. February 19,2007.

COVER UP IN THE JUSTICE SYSTEM?????

To whom it may concern:


This is a copy of a letter I sent to the New Brunswick and the Nova Scotia Law Society

I have filed complaints in New Brunswick about the return of my files and documents against a lawyer in this Province.

His name is Jamie Eddy!!!!

I now wish to do so against two Nova Scotia lawyers as well.

I am not a lawyer, but I have appeared in court on February 26th 2007 on a motion that has come about regarding an expropriation case that a decision was handed down upon on June 3th, 2005.

I will send you an attachment of a letter that I have received from the New Brunswick Law Society, dated October 25, 2006.

This email letter is from a Robert Pineo <> to my NB lawyer, James Eddy.

Since then more than 90 days have passed.

Obviously Mr. Pineo and Mr. Douglas Caldwell <> would know that with my own appeal of File: F/C/328/00 and the action on the Goodwin matter File: F/C/ 187/04 requires that I would need my files and documents back immediately.

They have moved these files to Nova Scotia without my knowledge.

When I went to Fredericton to look at what was in my files in May of 2004, because the Government lawyers had requested me to do an undertaking,

Mr. Eddy informed me the NS lawyer Doug Caldwell had the files moved to his office in NS.

I asked Mr. Eddy to show me what he had for files in his office in Fredericton?

He produced 2 file folders which I was allowed to view in a private room.

When I was looking through these files I came upon an email memo which basically instructions directing the removal of my documents to the Truro office to make it more difficult for Richard (myself) to see them.

I asked Mr. Eddy what was up with this?

He QUICKLY grabbed the documents from me and said that that memo should not have been there.

When challenged, he said those files are the property of Mr. Eddy. <>

I was very upset and left the office.

I called him up the next day and left a message on his answering machine requesting a copy of the memo that I had viewed, but never received one.

Now the defense might be successful because I cannot obtain the files and documents necessary to back my claim.

I am at a loss for what further to do?

I am pleading for you < New Brunswick and Nova Scotia Law Society > to intervene and have my files returned to me as there are many documents in the files pertinent to the Goodwin matter File: F/C/ 187/ 04.

Yours truly,


Richard Harris

February 21, 2007

P.S. My phone number is 1-506-460-8099 and my e-mail is injusticecoalition@hotmail.com

Thursday, October 11, 2007

the Appeal cost $$$$$$$

(Press control and right arrow for the same effect)
(Press control and left arrow for the same effect)

Harris v. New Brunswick (Transportation), 2007 CanLII 3921 (NB C.A.)


Date:2007-02-12
Docket:
URL:

Noteup


100/05/CA

IN THE COURT OF APPEAL OF NEW BRUNSWICK

Richard, J.A.

B E T W E E N:

RICHARD A. HARRIS ) Richard A. Harris,

) appeared in person

APPELLANT )

)

- and - )

)

HER MAJESTY THE QUEEN IN RIGHT ) David Eidt, Esq.

OF THE PROVINCE OF NEW BRUNSWICK, ) for the Respondent

AS REPRESENTED BY THE MINISTER )

OF TRANSPORTATION )

)

RESPONDENT )

DATE OF HEARING: February 12, 2007

DATE OF ORDER: February 12, 2007

ORDER

WHEREAS Richard A. Harris filed a Notice of Appeal on June 27, 2005 from a decision of the Court of Queen’s Bench dated June 3, 2005;

AND WHEREAS the appeal has not yet been perfected;

AND WHEREAS a status hearing, as contemplated in Rule 62.15.1, has been held on this date;

HAVING heard the Intended Appellant and counsel for the Intended Respondent;

IT IS HEREBY ORDERED AS FOLLOWS:

1. The time prescribed in Rule 62.15.1(4)(b) is abridged;

2. Subject to any further order of the Court of Appeal or of a judge thereof, the Intended Appellant shall perfect his appeal by November 30, 2007.

3. If the appeal is not perfected within the time set out in paragraph 2 hereof, the Registrar shall dismiss the appeal for delay, in accordance with Rule 62.15.1(7).

DATED at Fredericton, New Brunswick, this 12th day of February, 2007.

_________________________________

J.C. MARC RICHARD, J.A.

Court of Appeal of New Brun

the Expropriation Act got to beChange

F/C/328/00

IN THE COURT OF QUEEN’S BENCH OF NEW BRUNSWICK

TRIAL DIVISION

JUDICIAL DISTRICT OF FREDERICTON

B E T W E E N:

H.A.R. CONSTRUCTION LIMITED, RICHARD A. HARRIS and RICHARD JAMES JOSEPH HARRIS,

Applicants;

- and -

HER MAJESTY THE QUEEN in Right of the Province of New Brunswick as Represented by the Minister of Transportation,

Respondent.

Date of Trial: March 7, 8, 10, 11, 14, 15 and 16, 2005

Date for Filing Post-Trial Briefs: April 11 & 18, 2005

Date of Decision: June 3, 2005

Before: Mr. Justice David H. Russell

Representation of Parties at Trial:

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

Robert H. Pineo, Esq. )

)

David Eidt, Esq. ) for the Respondent.


D E C I S I O N

RUSSELL, J.

[1] The value, under several heads, of the lands expropriated from the applicants by the respondents to construct a divided highway is the question for determination. In general, the applicants say the lands should be treated as lands that were ready for subdividing and residential building construction when expropriated. The respondents say the highest and best use for the lands about which there is the greatest controversy should be for a “Holding Use – Future Residential Development”. As a result, there is a great divergence in value. The applicants say their claim amounts to $909,614.65 excluding accelerated income tax and interest. The respondents say the value of the taking is some $22,726.00.

[2] H.A.R. Construction Limited (hereafter “HAR” or “the company”) is wholly owned by Richard Harris (hereafter “the applicant” or “Mr. Harris”). Mr. Harris is Richard James Joseph Harris’s father.

THE CLAIM

[3] As amended, the Notice of Arbitration under the provisions of the Expropriation Act claims the following:

a) Fair Market Value of Parcel 97-1 (part of

lot 92-2, Plan 200302, PID 60133691,

Richard A. Harris) $15,000.00

b) Fair Market Value of Parcel 97-2 (Lot 92-1,

Plan 200302, PID 60133683, Richard A.

Harris) $ 16,000.00

c) Fair Market Value of Parcels 97-2 and

97-3 (part of PID 60047644), DOT Plans

12-2-0036 and 12-2-0037 and Injurious

Affection to remaining lands in PID

60047644 (H.A.R. Construction) $ 67,500.00

d) Business loss (street work only) to

Richard A. Harris/H.A.R. Construction

Limited $ 67,000.00


f) Site preparation for building lots, including

driveway, culvert, fill and dozer work

(Richard A. Harris/H.A.R. Construction) $ 22,720.00

j) Loss of future income from building and

selling house, undiscounted (Richard A.

Harris/HAR Construction) - claim for

injurious affection and/or loss of a special

economic advantage. $729,000.00

l) Lot clean up and remediation costs $442,942.42

m) Cost of installing driveway and culvert

on remaining land (Richard A. Harris/HAR

Construction) $ 3,000.00

o) Owner’s time in preparing and presenting

claim (estimated) (Richard A. Harris) plus all

additional time to and including trial and all

other damages or loss flowing from the

expropriation of these lands $113,282.00

THE LEGISLATION

[4] The relevant provisions of the Expropriation Act, R.S.N.B. 1973, Ch. E-14 and amendments follow:

PART II

COMPENSATION

25. 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. 1973, c.6, s.25.

38(1) Where the land of an owner is expropriated, the compensation to the owner shall be based upon:

(a) the market value of the land,

(b) damages attributable to disturbance,

(c) damages for injurious affection,

(d) any special economic advantage arising out of his occupation of the land that is not reflected in the market value of the land

39(1) The market value of land expropriated is the amount that would have been paid for the land if it had been sold on the date of expropriation in the open market by a willing seller to a willing buyer.

“injurious affection” means,

(a) where a statutory authority takes part of the land of an owner,

(i) the reduction in market value thereby caused to the remaining land of the owner by the taking or by the construction of the works thereon or by the use of the works thereon or any combination of them, and

(ii) such personal and business damages resulting from the construction or use, or both, of the works as the statutory authority would be liable for if the construction or use were not under the authority of a statute, or

(b) where the statutory authority does not take part of the land of an owner,

(i) such reduction in the market value of the land of the owner, and

(ii) such personal and business damages,

Resulting from the construction and not the use of the works by the statutory authority, as the statutory authority would be liable for if the construction were not under the authority of a statute,

And for the purpose of this definition, part of the land of an owner shall be deemed to have been taken where the owner retains land contiguous to that taken or retains land of which the use was enhanced by unified ownership with that taken.

THE LAND

[5] The land is situate on the west side of the Broad Road (for purposes of this opinion the Broad Road runs north-south) between Oromocto to the north and Geary to the south and is located in Haneytown.

[6] It was purchased by the company in 1992 and consists of some 12.66 hectares. In 1993 the company subdivided and sold lots abutting on the Broad Road to Richard Harris, H.A.R.’s principal. These lots were numbered 92-1, 92-2 and 92-3 (throughout this opinion these identifiers are used rather than the respondents “parcel” identifiers), and along with two access lanes encompassed the total width of the 12.66 hectare property fronting on the Broad Road. To the rear, or westerly, the land is wider to the extent of the width of the “bicycle shop” lot. The two access lanes ran in a generally east-west direction running from the Broad Road to the remaining bulk land to the west of the above-mentioned subdivided lots fronting on the Broad Road. As one is standing on the Broad Road facing west, lot 92-1 is to the left or south, then moving north there is the south access lane, then lot 92-2, next there is lot 92-3 and, finally, the north access lane. To the north of that is the bicycle shop lot. The two access roads are 20 metres wide and are some 121.7 metres apart.

[7] Lot 92-1 has a frontage of 68.944 metres, a northerly sideline of 66 metres, and contains .4178 hectares. The adjacent southerly access road is 20 metres wide. Lot 92-2 has a road frontage of 61 metres, a southerly boundary of 66 metres with the above-mentioned south access road and contains .4026 hectares. To the north of lot 92-2 is lot 92-3 on which Mr. Harris built a convenience store, later converted to a duplex. To the north of that lot is the northerly access road. The land to the rear of these road-front lots consisted of 8.4 hectares. It is 278.587 metres wide at the front (east side) or rear of lots 92-1, 92-2 and 92-3. It has a depth, along its northerly sideline of about 271 metres from the rear of the bicycle shop lot to the westerly sideline of the subject land.

[8] The new highway sliced off the south side and southeast corner of the above mentioned lands. More specifically, the expropriation took all of lot 92-1, all of the south access road, about one-third of the south side of lot 92-2 (making that lot unmarketable) and a triangular part of the rear raw land. The triangle’s sides consists of the substantial portion of the south sideline of the raw land, secondly, the rear (west) sides of lot 92-1, the south access road, and a portion of lot 92-2 and the hypotenuse (with a slight kink) that runs southwesterly from the rear of lot 92-2 to the southerly sideline of the rear land. The total taking of the rear land (hereafter the “parent lot”) was about 1.004 hectares.

[9] On January 13, 1993, H.A.R. bought the complete parcel of land from Kierstead Mobile Home Sales Ltd. On November 5, 1993, the front lots (92-1, 2 and 3) were created and conveyed to Mr. Harris. Remaining in H.A.R.’s name were the two accesses created at the same time as the three lots and the raw undivided land to the rear or west.

[10] In 1994 Mr. Harris built a convenience store (see: Exhibit A-1, Tab 42) on lot 92-3. It was operated by he and his then wife Marilyn. It was a money losing venture from the beginning. Mr. Harris converted it to a residential duplex building. It was sold in March 1996.

[11] As noted, following the expropriation only the north access from the Broad Road remains.

THE EXPROPRIATION

[12] Shortly after December 12, 1996, Mr. Harris received a Notice of Intent to Survey from the respondent’s Chief Highway Engineer. This letter said survey crews may be required to enter the lands to acquire information with respect to a new divided highway being constructed.

[13] On September 30, 1997, Mr. Harris was sent a Notice of Intention to Expropriate.

[14] On December 17, 1997, a Notice of Expropriation was registered in the Office of the Registrar of Deeds and on the following day letters were sent to Mr. Harris as president of H.A.R. and in his personal capacity advising of the taking.

[15] In the interval between December 1996 and December 1997, the province negotiated with Mr. Harris and/or his then lawyers as reflected in the letters and offers contained in Exhibit A-1, Tabs 6–9, 11-13. Even after the Notice of Expropriation negotiations continued but proved fruitless.

THE APPLICANT’S EVIDENCE

[16] Mr. Harris was born on July 1, 1952. He has a limited formal education but is a licensed carpenter and is licensed to install onsite sewage disposal systems. He is, as well, a heavy equipment operator.

[17] The company’s best years were in the late 1980s and early 1990s. In each of the years 1993-96 the company lost money. The company was wound down in 1996 and the assets transferred to the applicant. Mr. Harris said on cross-examination that from 1993 to 1996 he did not have a reliable source of income. During that period he was, “definitely in the process of losing money”. In 1993 the company had several bulldozers, loaders, a small float and several trucks.

[18] When the property was purchased in 1993, for $25,000.00, it was Mr. Harris’s intention to construct a mobile home park. To that end, following the transfer of the front lots to him, he engaged an engineering firm who prepared a plan and engineering specifications for a mobile home park (see: Exhibit A-1, Tabs 37 & 38). This plan was never approved. In 1993, however, he did create the two access roads which went west into the property approximately 66 metres. He hired an individual to cut the wood from the rear of the land. During the highway construction, concrete, gravel and other debris was dumped on various parts of the property.

[19] After the duplex and lot 92-3 were sold he abandoned plans to build a mobile home park and concentrated on creating a subdivision on the land. Sometime around Christmas 1996, and after receiving the Notice of Intent to Survey, Mr. Harris became convinced the respondent was going to expropriate some of his land. He contacted the engineering firm who had created the mobile home park in 1993. Their 1997 plan (see: Exhibit A-1, Tabs 55 & 56) created a 16 lot subdivision on the raw land in addition to the two lots that had been created on the Broad Road, giving the applicants a total of 18 lots. This plan, along with the earlier mobile home park plan, was submitted to the Rural Planning District Commission for approval. On February 5th, 1997 the Development Officer wrote Mr. Harris and said in part (see: Exhibit A-1, Tab 5):

After our conversation on February 5, 1997, I asked the Department of Transportation to show how the new Trans Canada Highway will affect your property. When this information was received we reviewed your subdivision plan. Considering how the new highway may affect your property, you should consult with the Department of Transportation on how best to develop this property. The Department will have to take possession of any public streets created to service this land.

The new highway may make the lot unsuitable for your intended development. To save you any further expense, I am returning your cheque and plans. After consulting with the Department of Transportation you may submit a new plan to develop this property taking into consideration the effect the highway will have. Should you wish to submit new plans, it should be for either a mobile home park or for a subdivision on public streets.

[20] Mr. Harris was convinced the expropriation would result in the remaining land being undevelopable and did not submit any further plans for approval.

[21] Throughout 1995-97 Mr. Harris and his company were in financial difficulties. The convenience store was a money losing proposition. The company did not have any contracts and the applicant was unemployed. In 1995 he attempted to sell the two front lots (92-1 & -2) for $15,000.00 each. In fact, he obtained an offer of $11,500.00 for one of the front lots but rejected it, countering with $15,000.00. The prospective purchaser did not return. As well, he had the store listed for sale for $230,000.00 and the rear undeveloped land for $33,000.00 (see: Exhibit R-11). In cross- examination Mr. Harris said he probably could not afford to develop the land in 1995 owing to his financial condition. In that year he moved to Alaska seeking employment in the fishing industry.

[22] Subsequent to selling the duplex in 1996 the applicant testified he had some $218,000.00 in accessible cash which was to finance the creation of a subdivision and the building of homes. The homes would be constructed by him speculatively and sold by him privately. He said he intended to build two homes a year.

[23] Because his plans to create a subdivision and build houses had been foiled by the expropriation he left New Brunswick for Yellowknife in June 1997. He returned in the autumn of that year.

[24] He testified he did not start house construction on any part of his land in 1996, even though he had cash available, because he did not have a suitable float to transport earthmoving equipment between his gravel pit and the subject land site. He said he would have had to hire a float and there is “no money in that”. He did eventually purchase a float in September 1996. There was no evidence about why he did not start construction of one or two houses in September 1996 after he obtained the float. He did not attempt to rent a float. On another occasion, in cross-examination, Mr. Harris said he did not build on the front lots in 1996 (even though they were already subdivided and accessible) because the winter of 1995-96 was a “real wet one” and he couldn’t get on the land. In September 1997, after moving back from Yellowknife, the applicant sold his gravel pit and the company’s equipment. He has never tried to subdivide and build on the remaining land. He said this was because upon selling the gravel pit, subdividing and building became financially unfeasible. As well, the remnant land consisting of 7.2641 hectares, is not feasible to develop, according to Mr. Harris, because it is beside the divided highway.

THE EXPERTS

Daniel Babineau & Wayne Browne

[25] Daniel A. Babineau of Babineau Appraisals Ltd. gave evidence for the applicants (see: Exhibit A-2, Tab 69). He wrote and testified the highest and best use for the two front lots was as residential building lots and for the parent lot as a 16 lot residential subdivision. As to the latter, his opinion is that the partial taking (1.1359 hectares from 8.4 hectares) would reduce the subdivision from 16 to 7 lots. Because they are beside the new Trans-Canada highway the value will be reduced and there is a value for, “injurious affection”. This resulted in his using two different appraisal methods. For lots 92-1 and 92-2 he used the Direct Comparison Approach. He analyzed nine sales in the area which he used as comparable sales. He concluded each of these lots as of the date of expropriation had a market value of $16,000.00. A portion of Lot 92-2 remained unexpropriated which Mr. Babineau valued at $1,000.00. Thus, the net value for the two lots, in Mr. Babineau’s opinion was $31,000.00.

[26] The partial taking of the parent lot was appraised using a different methodology. He used the Subdivision Development method which is defined thusly (see: Exhibit A-2, Tab 69, page 21):

SUBDIVISION DEVELOPMENT - This technique, applicable chiefly to undeveloped lands, calls for estimating total value as if the lands were subdivided & sold and subtracting the development costs.

[27] He wrote at page 36:

MARKET VALUE OF LOT 97-2 AND 97-3 AND THE LOSS IN VALUE TO THE REMAINING LAND

The “Before and After” Method will be utilized to determine the Market Value of the land taken and the loss in value to the remaining land. The “Before and After” Method consists of valuing the property before the expropriation then subtracting the value of the property after the expropriation.

The Parent Property was a sixteen lot subdivision, therefore the Subdivision Development Approach will be used to determine the Market Value of Parcel 97-2 and 97-3 and the loss in value to the remaining land.

The Subdivision Development Approach will be analyzed using a sixteen lot subdivision in the “Before” scenario and a seven lot subdivision in the “After” scenario.

[28] Mr. Babineau assumed the building lots in the 16 lot subdivision would have a value of $18,000.00 and in the 7 lot subdivision which remained after the taking would have a reduced value of $12,000.00. He also assumed, left to his own devices, Mr. Harris would have built and sold four lots each year. In the seven lot subdivision, post-expropriation he assumed construction and sales of 2 lots a year. Thus, in summary, he concluded at page 44:

FINAL ESTIMATE OF VALUE OF LAND TAKEN INCLUDING INJURIOUS AFFECTION

The difference between the market value before and after represents the sum of the market value of Parcels 97-2 and 97-3, including injurious affection.

Before the expropriation: $72,567.49

After the expropriation: $ 5,120.65

Total Loss $67,446.84

ROUNDED TO

$67,500.00

(SIXTY SEVEN THOUSAND FIVE HUNDRED DOLLARS)

[29] As well, because Mr. Harris had the capability of not only building the houses but of constructing the subdivision infrastructure, Mr. Babineau determined his cost to develop the subdivision would have been less than in the above analysis. This he considered a business loss to Mr. Harris. He summarized this as follows:

FINAL ESTIMATE OF BUSINESS LOSS

The difference between the business loss before and after represents the total business loss, to the owner

Before the expropriation: $103,030.38

After the expropriation: $ 35,884.89

Total Business Loss $ 67,145.49

ROUNDED TO

$67,000.00

(SIXTY SEVEN THOUSAND DOLLARS)

[30] In summary then, for the complete land taking Mr. Babineau wrote:

SUMMARY OF VALUES

Parcel 97-1: $ 15,000.00 (fifteen thousand dollars)

Parcel 97-2: $ 16,000.00 (sixteen thousand dollars)

Parcel 97-2 and 97-3

Including the loss in

Value to the remaining

Land: $ 67,500.00 (sixty seven thousand five hundred dollars)

Business Loss: $ 67,000.00 (sixty seven thousand dollars)

Total Compensation

(Land Only): $165,500.00 (one hundred sixty five

Thousand five hundred dollars)

[31] The expertise of Mr. Babineau was then combined with that of Wayne Browne, a professional engineer and architectural designer. The latter estimated the cost to Mr. Harris to construct a certain type of bungalow on the subject land. He concluded it would cost between $50-70,000.00 to construct each house. He wrote (see: Exhibit A-2, Tab 76):

A cost assessment was compared to quotations supplied by Kent Building supplies, electrical and plumbing sub-contractors with accepted costing literature such as above, and they all fell within the accepted boundaries of anticipated cost. The going selling price of similar homes from local real-estate publications in the same area is about $110,000.00. Considering Mr. Harris is a journeyman carpenter and that he had excavation and grading equipment and granular material at his disposal, his cost to construct and complete specified homes would range between $50,000.00 and $70,000.00 each, pending site conditions and time of construction. Considering cost for sub-contracting requirements were only for electrical and plumbing specialties, Mr. Harris’ profit should average $50,000.00 per house and lot.

[32] Mr. Babineau in Exhibit A-4 determined a house of the type Mr. Harris contemplated building would sell for $108,500.00. Then, using Mr. Browne’s conclusions he opined (see: Exhibit A-2, Tab 70):

Value of a typical 1,200 sq ft bungalow in

the Harris Subdivision $108,500.00

Less cost to construct the house $ 50,000.00

Less land value $ 18,000.00

Profit per house $ 40,500.00

Possible number of houses before

expropriation 18

Total profit loss $729,000.00

The value of the house and the land value were obtained from my appraisals. The construction cost of $50,000.00 was obtained from Mr. Brown.

Please note that this does not take into account the absorption period, therefore, the profit loss has not been discounted.

[33] Finally, Mr. Babineau put it all together in his report to Mr. Harris dated August 10, 2001 (see: Exhibit A-2, Tab 69, Schedule “B”):

Dear Mr. Harris:

Please find enclosed the reports outlining the Total Compensation, due to the expropriation.

Appraisal No. 010412-D prepared by Daniel A. Babineau, B.I.A., AACI, contains the value of the land taken, including injurious affection and the business loss (land only) due to the expropriation, which has been established at $165,500.00 (ONE HUNDRED SIXTY FIVE THOUSAND FIVE HUNDRED DOLLARS).

Appraisal No. 011008-D prepared by Daniel A. Babineau, B.I.A., AACI, contains the value of a typical 1,200 sq ft bungalow located in the Harris Subdivision, which has been established at $108,500.00.

A report prepared by Wayne D. Browne, BSc, Bsc Eng, P.Eng, has established a business loss, due to the expropriation, for the house construction and re-sale. This amount has been established at $729,000.00 (SEVEN HUNDRED TWENTY NINE THOUSAND DOLLARS).

Therefore, based on the above information, the total compensation is $894,500.00 (EIGHT HUNDRED NINETY FOUR THOUSAND FIVE HUNDRED DOLLARS).

[34] In fact, Mr. Browne did not establish a business loss. He only gave evidence about the cost to Mr. Harris to build a certain type of house and the cost of certain infrastructure.

Malcolm J. Carter

[35] This appraiser was declared an expert and gave evidence for the Province. He used the direct comparison approach for all three takings. His opinion was that the partial taking of the 8.4 hectare lot did not result in injurious affection to the remainder of that lot. He believes the lots have less value than established by Mr. Babineau. The comparable sales used by Mr. Babineau were from subdivisions that were more upscale and were superior developments when compared with the Haneytown area.

[36] When discussing the lots 92-1 and 2 he knew that an arms length offer of $11,500.00 had been made and refused by Mr. Harris in late 1994 (see: Exhibit R-1, Tab 3). The applicant had countered with $15,000.00 but the prospective purchaser was not interested and the sale did not materialize. His view was that each of these lots fair market value was $10,000.00. Lot 92-2 was a partial taking (.1341 hectares from .4026 hectares) and he concluded the value of the part taken was $8,000.00.

[37] The parent lot, owned by H.A.R., had 1.1359 hectares of 8.4 hectares expropriated. Including any loss to the remaining lands, Mr. Carter estimated the value to be $2,726.00.

[38] In his report Mr. Carter noted the following under the heading, “Summary – Whole Parcel – Before the Take” (see: Exhibit A-2, Tab 73, pages 27-28):

Mr. Harris has a letter from Harry Libbey dated February 20, 1994 offering to purchase Lot 5 for $13,000 after streets and hydro poles are in, pending survey and deed.

The owner of the property does not have an approved subdivision or tentative plan. He does, however, have a sketched plan prepared by J.E. Brooks & Associates Ltd., dated April 1993 for a 75 lot mini-home park. This plan did not meet the classification for Zone No. 1 (Residential R-2 Zone) and hence would have required that the property be rezoned. The application for rezoning was not pursued.

In January 1997 Mr. Harris had prepared a tentative subdivision plan subdividing the parcel into 16 lots ranging in size from .4000 hectares to .5900 hectares. This plan was not approved as there was a freeze on development in this area for the proposed Route 2 realignment.

[39] After the expropriation Mr. Carter said there is still room for 10 lots and not only the 7 described by Mr. Babineau (see: Exhibit R-17).

[40] He attempted to perform an analysis using the subdivision approach favoured by Mr. Babineau but using different values. He testified the results were somewhat bizarre and there is simply too much subjectivity for this approach to be valuable. The subdivision approach should only be used where there are not any good direct comparable sales available. As well, based on two experts’ reports that he reviewed he concluded that land beside a major highway did not depreciate in value. As a consequence he did not allow anything for injurious affection.

[41] Mr. Carter’s final conclusions on the parent lot partial taking are set out at page 41 of Exhibit A-2, Tab 73, thusly:

Therefore, from my investigation and analysis, considering the factual data previously discussed and available market data analyzed, I have concluded the subject site has a market value, as of the fourteenth day of November 1997 as follows:

VALUE OF PARENT PARCEL BEFORE THE TAKING

8.4 hectares @ 2,400 per hectare $20,160

VALUE OF PROPERTY AFTER THE TAKING

7.2641 hectares @ $2,400 per hectare $17,434

VALUE OF THE PART TAKEN (PARCEL NO. 97-2

AND 97-3) AND ANY LOSS IN VALUE OF THE REMAINING LANDS

TWO THOUSAND SEVEN HUNDRED TWENTY- SIX DOLLARS ($2,726)

ANALYSIS & CONCLUSIONS

Lots 92-1 and 92-2

[42] There is no disagreement among the appraisers that these lots should be valued using the direct comparison approach. The only difference – and it is a substantial one – is the end result. This arises because different subdivisions/areas/lots were used by the two appraisers for comparison purposes.

[43] I conclude the lots used for comparison purposes by Mr. Babineau were not of comparable value. They principally were in subdivisions that were more developed and more attractive than the subject lots. Specifically, the Richmond Estate Subdivision in Lower Lincoln and the Gilbert Subdivision in Burton were not comparable and the sales utilized from these areas should be discounted. I accept as factual Mr. Carter’s view that the comparables used by Mr. Babineau were not appropriate.

[44] On the other hand, Mr. Carter’s opinion, in my view, about these lots value was too low. Some of the comparables were of inferior quality, including Index #4 in the two reports for Lots 92-1 and the partial taking of Lot 92-2.

[45] There was an arms length offer of $11,500 for one of these lots in late 1994. There was a counter offer of $15,000.00 which was obviously too high, at least for that particular prospective purchaser. While one cannot use a single sale as a sole criteria, I am of the view that these lots each had a value on the date of expropriation of $13,000.00. I accept Mr. Carter’s views about the residual value of Lot 92-2 (see: Exhibit A-2, Tab 72, pages 40-41) and conclude it was worth $2,000.00 on the expropriation date. The net value of the two front lots is therefore $24,000.00.

The Parent Lot – Partial Taking

[46] An almost triangular portion to the rear (or west) of lots 92-1 and 2 and the south access as well as the south access were expropriated from the H.A.R. lands. The appraisers differed in their respective approaches to this appraisal. Mr. Babineau used the so-called subdivision approach and Mr. Carter the direct comparison approach. It is evident the latter is, for most purposes, more favoured.

[47] In The Law of Expropriation and Compensation in Canada, 2nd Edition, 1992, Carswell, by Eric Todd, the author states about the subdivision approach at pages 218-219:

6. Land Development (Subdivision) Approach

In special circumstances the estimate of the market value of land may be made by the land development (subdivision) approach which is a modification of the direct sales comparison approach. It is not a valuation technique of general application.

This approach

may very simply be described as one in which a future potential subdivision is devised, and the selling price of the serviced lots is then estimated; this is then multiplied by the estimated potential number of lots in the subdivision; from the gross potential receipts of the sales, the servicing and development costs are estimated and deducted. The net result must then be discounted by deducting a percentage for future profits. The result is intended to be the present value as of the date of expropriation.

In order to utilize this approach a considerable amount of data must be assembled including a subdivision plan showing the number, size and type of lots from the gross acreage, market data to estimate the market value of the lots, estimates of direct and indirect development costs, estimate of developer’s profit and overhead, absorption estimate, and the discount or risk rate.

Courts and tribunals are usually reluctant to rely on the land development (subdivision) approach for two reasons. First, unless a proposed subdivision has actually been officially approved there is always some degree of uncertainty as to whether, and under what conditions, the subdivision would ever have materialized. In such a case

[I]t is speculation added to speculation to endeavour to compensate an expropriated owner on the basis of long-term possible sales at present estimated prices of lots theoretically carved out of acreage after expropriation, but as if no expropriation had occurred ….

Second, it is recognized that the approach is “volatile” in the sense that a comparatively minor change, for example in the costing of services, can produce a figure in the end result which will significantly affect the residual value. “As is shown from the variations and permutations of all the figures here, one slip of the pen seems to cost thousands of dollars, so care should be used.”

[48] If there is inadequate data to use the comparable sales approach and the development was imminent as of the date of expropriation (Todd (supra) page 220), this method can be utilized. If the land is not “reasonably ripe” for development this approach should not be used. Mr. Todd went on to say at page 220-221:

It has been stated that the land development (subdivision) approach “is applicable only if the lands are reasonably ripe for development, and its application must not result in a valuation of the land as if it had already been built upon.”

In the most favourable situation the subdivision is already underway at the date of expropriation. Short of this there must be convincing evidence or agreement as to ripeness, for example the filing of a subdivision plan with the appropriate authority, the availability of services and a market for subdivided lots.

Courts and tribunals “have indicated disapproval of the development approach in the valuation of raw lands.” For example, if there is “speculation as to the likelihood of getting the property rezoned, a subdivision plan approved, the number of lots that would be approved on the subject, the cost of developing them, (and) the time involved and the cost of selling them.” Use of the approach has been disregarded in cases where, but for the expropriation, the subdivision would not have been commenced until some years later. …

[49] The applicants had not obtained approval for the draft subdivision plan submitted in February 1997. Why was that plan submitted? Mr. Harris said he learned on December 1996 that his property was going to be affected by the highway. An acquaintance, Mr. Herb Colburne, told him, “If you don’t have a tentative plan submitted you will not get paid for lots”. On December 19, 1996, Heather Pugh, then a planning engineer with the respondent, wrote a memo (see: Exhibit A-8). It said, in part, referencing lots 92-1 and -2:

Mr. Harris was in on December 17, 1996 to see the plans. I explained what we required and he mentioned that he had intended to build next year on one of these lots.

[50] On January 13, 1997, Mr. Harris engaged J.E. Brooks & Associates Ltd., consulting engineers, to prepare a plan for a residential subdivision utilizing the parent lot. This plan was submitted on January 20, 1997 to the Rural Planning District Commission along with the 1993 plan for a mobile home park for the same land. When the plans were submitted for approval by Richard Giggie of Brooks on behalf of the applicant he wrote in part: “Mr. Harris is submitting the two layouts as he wishes to develop this land but has not yet decided which development option to pursue.”

[51] I accept Ms. Pugh’s evidence as being factual. I conclude Mr. Harris did meet with Heather Pugh on the date mentioned in the memo and that he knew on that date not only were the two front lots going to be affected but some of the parent lot including the access between lots 92-1 and 92-2. Supporting this conclusion is a portion of the Statement of Claim in an action Mr. Harris has commenced against an appraiser initially retained to value the subject lands. The Statement of Claim was prepared by Mr. Harris. Paragraph 3 says (see: Exhibit R-1, Tab 11):

On or about December 20, 1996, the Plaintiff received, by registered mail, an Intent to Survey Notice dated, December 12, 1996. Receipt of this letter cause (sic) the Plaintiff to cease his plans of further self-employment and land development, because of the intention of the Minister of Transportation to relocate a highway and expropriate land from the Plaintiffs. (page 4, paragraph 3)

[52] Mr. Harris acknowledged the two concepts were submitted by his engineers with his knowledge. Mr. Harris’s answers were often unresponsive to the questions posed. He contradicted himself on several occasions. Apart from these inconsistencies, however, and simply utilizing the documentation, I conclude the subdivision plan was prepared to bolster his claim for compensation in face of the impending expropriation which, when the plan was prepared, he knew was going to occur. He did not engage Brooks in January 1997 for the purposes of building a subdivision plan that was going to go forward. The plan was prepared solely for the purposes of augmenting the compensation available for the upcoming expropriation. Apart from that and taken at its best, the Brooks plan was not fully engineered or dimensioned.

[53] Up to then, and most particularly in the summer or fall of 1996, he had not begun construction of any houses on either lot 92-1 or 92-2. These lots were already subdivided, adjacent to the Broad Road and ready for development. In fact, they had been for sale for some time. He gave several reasons for not beginning construction during the 1996 building season. He said it was an unusually wet spring delaying building starts. Further, the sale of the store was not completed until March 1996 and the money from that sale was necessary for financial reasons. He also testified he did not begin construction because he did not have a suitable float for his heavy equipment until September 16, 1996. He had obviously been financially troubled for several years. According to him he had sufficient funds in early 1996 to begin financing house construction. His reasons, singly or cumulatively, for not starting construction do not stand scrutiny. For example, why didn’t he explore the rental of a float pending the purchase of one? Why didn’t he begin construction in September 1996 (after he purchased a float) long before the outdoor working season came to an end? His inaction in 1996 leads me to conclude he did not have the intention to construct homes on the already subdivided front lots. If he failed to begin construction for spurious reasons on the two front already subdivided lots, what conclusion can be reached about the parent lot to the rear?

[54] The two access roads were, at best, rough and not of any significance in relation to accessing the complete parent lot. I accept Mr. Carter’s evidence in this regard. The parent lot was far from being a subdivision ready for the construction of even one house. Thus, Mr. Harris did not display an active intention to construct houses. He had a subdivision plan prepared for a purpose other than to sell lots and construct homes. In R.P.B. Construction Ltd. v. New Brunswick [1995] N.B.J. No. 519, the applicant’s appraiser used the same approach as Mr. Babineau. The applicant had purchased the lands for future residential development. He had a sketch prepared by a surveyor. Mr. Justice Deschênes, then of the Court of Queen’s Bench wrote:

¶21 b) The purpose of all of the evidence adduced by R.P.B. was to demonstrate that if a subdivision plan was eventually approved, if a municipal water and sewerage system could one day serve the planned residential subdivision, if R.P.B. created residential lots and streets to serve them, then it was reasonable to believe that 17 residential lots could be sold within 5 years.

¶22 Of course, all of this evidence is based on assumptions, some of which may be somewhat realistic, but some obvious contradictions are not being taken into account. …

¶23 The Court is of the opinion that the residential development plan for parcel 90-8 is quite unrealistic and makes no provision for obstacles or the unexpected.

¶24 R.P.B.’s appraiser is merely adding speculation to speculation by endeavouring to determine the market value of parcel 90-8 by converting it to residential lots straight away and by setting a current value of approximately $20,000.00 per lot. …

[55] I conclude that is the situation here. I have found the subdivision plan was not prepared for purposes of subdividing and building on the parent lot. Mr. Harris was unprepared financially or otherwise to start construction for reasons already discussed. His financial condition was, and had been, precarious. Under these circumstances it is grossly speculative to utilize the subdivision approach. The inaction of the applicant in developing the subdivision prior to December 1996 reveals the difficulties in accepting Mr. Babineau’s speculative hypotheses about Mr. Harris’s ability to reduce costs. It is entirely provisional. The parent lot was not ripe for development. The subdivision approach is inappropriate. See also: Gay Ann Sutherland v. The Corporation of the Township of Langley, E.C.B. No. 07-97-173 (68 L.C.R. 49).

[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.

[57] Claims 7 d) and 7 j) are predicated on the Applicant building homes on the land. I have already concluded that, on balance, was not going to occur. If it didn’t start in 1996 the probabilities of construction starting in the future was negligible. The applicant’s position is that he had $217,000.00 in hand in 1996. Each house would cost him approximately $50,000.00 and each would sell for $108,500.00 according to his experts. The two roadside lots were accessible and ready for construction. Utilizing the applicants’ witnesses’ evidence, construction of two homes in the 1996 construction season (apart from living expenses) would have grown the $217,000.00 to $335,000.00 (217,000-100,000+(108500x2). The fact construction did not occur in 1996 leads to a conclusion that any future construction was extremely speculative. These two elements of the claim are disallowed.

[58] Item 7 f) is for site preparation, in particular, the construction of the two access roads. Mr. Harris said this cost $13,000. Mr. Withers, the applicant’s accountant, testified a further $5000.00 should be allowed for profit and wear and tear on his vehicles and equipment. I allow $18,000.00 under this head.

[59] Item 7 l) in the Amended Claim is for Lot cleanup and remediation. The amount of $442,942.42 is claimed. This arose from the dumping of debris and other waste material arising from the highway construction on the parent lands by Atcon Construction. Mr. Harris signed an agreement with Atcon permitting certain dumping. It is alleged that company exceeded its rights under that agreement. This claim was reduced to $5120.65. Despite its somewhat problematic nature I allow that amount.

[60] Item 7 m) is for a culvert in the amount of $3000.00. I allow this portion of the claim.

[61] Item 7 o) is for the owner’s time in preparing and presenting the claim including time spent at the trial. $113,282 is claimed but that is reduced, without more, to $10,000.00 in the Applicant’s post trial brief. There is no evidence Mr. Harris lost any employment income or other income from time spent in the preparation of this case. See: Rankin v. New Brunswick [2005] N.B.J. No. 95 @ paras. 68-75. I make no allowance under this head.

[62] The respondent has already paid $20,726.00. That will be deducted from the award.

[63] The applicants are entitled to 6% interest on the net amount from the time the Province took possession of the land (see: Section 50(1) of the Act). They are also entitled to costs in accordance with Section 52 of the Act as well as reasonable disbursements. Further directions can be sought concerning costs if necessary.

DATED at Fredericton, New Brunswick, this 3rd day of June, A.D. 2005.

______________________________

David H. Russell, J.C.Q.B.