160 EXCHEQUER COURT REPORTS. VOL. XXI. 1921 BETW1 EN . Sept. 15. THE KING, ON THE INFORMATION OF THE ATTORNEY-GENERAL OF PLAINTIFF; CANADA AND THE ROYAL NOVA SCOTIA YACHT SQUADRON, A BODY CORPORATE, THE EASTERN TRUST COMPANY, AND HONOURABLE L. G. POWER, NICH- DEFENDANTS. OLAS H. MEAGHER AND W. B. R. WALLACE, TRUSTEES UNDER THE WILL OF PATRICK POWER, DECEASED Expropriation—Allowance of 10 per cent for compulsory taking. Where by reason of expropriation by the crown the owners of the property taken suffer materially and are put to great trouble in moving; and where the site so taken was most advantageous and one which suited their purpose to an eminent degree, and it took several years of negotiating before they were able to find a new and suitable place for their operations, the court should add 10 per cent to the fair market value of the property taken, for such contingent losses and inconveniences, in fixing the compensation to be paid for such property. [The King v. Hunting, 32 D.L.R. 231, followed]. INFORMATION by the Crown to have property expropriated valued by the Court. September 15th, 1921.
VOL. XXI. EXCHEQUER COURT REPORTS. 161 Case now heard before the Honourable Mr. Justice 19 21 Audette at Halifax and judgment rendered on the THE KING V. bench. - THE RoYAI, NOVA SCOTIA YACHT SQUADRON, Mr. T. F. Tobin, K.C., for the Crown. El TAL Reasons for Judgment. P. ' T. Macilreith, K.C., for the Royal Nova Scotia Audette J. Yacht Squadron and the Eastern Trust Company. AUDETTE J. (15th September, 1921) delivered judgment. (His Lordship after stating the various interests represented and the point . in issue proceeds as follows:) HIS LORDSHIP: I shall now proceed to give judgment in the case. After hearing the evidence and the argument by counsel for the respective parties, there will be judgment in favour of the defendant, the Royal • Nova Scotia Yacht Squadron in the manner hereinafter mentioned. It is convenient to state here that the Eastern Trust Co's. interest has been satisfied, as well as the mortgage of the Power estate, the same being admitted by both counsel. The usual judgment in expropriation cases will be entered declaring the lands in question as described in the information vested in the Crown. The compensation is :fixed at the amount of $30,270.00, with interest from the date of the expropriation to the date of the intermediate payments, if any, made since the expropriation, but no interest is to be allowed further than the present day. Therè will also be costs to the defendant.
162 EXCHEQUER COURT REPORTS. VOL XXI. 1921 I now come to the consideration of the only question THE KING . open before me for determination, that is whether or v Rox T+IHN ovA not to the amount of compensation of $30,270.00 should sccT1A YACHT be added the ten per cent which in certain cases the SQUADRON. ET AL' courts have been disposed to allow for the compulsory Reasons for Judgment. takin g g . I maysaythere is no text of law allowing Audette J. this ten per cent for compulsory taking. The text- writers while drawing attention to the fact that there is no law to warrant such payment, state it has been customary in England to allow this ten per cent. There are instances where as much as fifty per cent was allowed in respect of agricultural lands. There are rases cited to that effect in my book, the practice of the court, under section 47 of the Exchequer Court Act. The Exchequer Court for a number of years has adopted that view, and has allowed ten per cent in quite a number of cases which are cited in the annotation to the report of the case of The King v. Courtney (1), such as Dodge v. The King (2); The King y. Macpherson (3) ; and Raymond v. The King (4), and others. Finally we come to the case of The King v. Hunting (5), which has not been reported in the Supreme Court reports. I think that, notwithstanding some expressions of opinion, mere obiter dicta, since that case, the Hunting case remains the leading case and the last word upon the subject. We find there stated by the Chief Justice, in his reasons for such allowance, the following remark in respect to the ten per cent, viz.: "The allowance of ten per cent for compulsory purchase (1) [1916] 27 D.L.R. 247, at p. 250; (3) [1914] 20 D.L.R. 988; and 15 also, 16 Ex. C.R. 461. Ex. C.R. 215. (2) [1906] 38 S.C.R. 149. (4) [1916] 16 Ex. C.R. 1. (5) [1916] 32 D.L.R. 331.
VOL. XXI. EXCHEQUER COURT REPORTS. has become so thoroughly established a rule from the innumerable cases both here and in England in which it has been awarded almost as a matter of course, that RorAz NoYA I certainly should not be prepared to countenance its sCOTIA being questioned in any . ordinary case. * * * * The ten per cent allowance does not of course profess to be anything but a covering charge and perhaps there might be cases in which it ought not to be allowed." Then Mr. Justice Idington in the same case, said: "I assume that the respective amounts tendered represent what those acting for the Crown concluded were fair market values due each party for her compensation, and that being so, I think there should have been added to each such amount the usual ten per cent thereof in way of compensation for compulsory taking. I agree that there is no rule of law rendering it an invariable consequence of compulsory taking.. It, however, in the majority of cases, is no more . thar justice demands. In the case of men having to find another home, or place of business, it is often less than justice demands. In the case of a man in easy circumstances who holds his property as an investment and desires to replace that form of investment by another of the like character he is put in procuring it, to expense, loss of revenue and inconvenience which those taking, should help to bear." Mr. Justice Anglin, in the same case, states: that something should be added for annoyance of being disturbed in possession, and for the delay in securing other suitable premises. "Compensation should cover not merely the market value of the land, but the entire loss to the owner who is deprived of it. It must, therefore, usually exceed the market value 29244-12 163 19 21 THE. K . ING B Q Y IIA A D C RO H N~ T ET AL. â = Audette J. ,
164 EXCHEQUER COURT REPORTS. VoL. XXI. 1921 though it may occasionally be less, as where the land THE KING v. taken is, while in the owner's hands, subject to depre-Ro AL ciatory restrictions from which it is relieved when None Ste" YACRT expropriated. The ten per cent allowance is of course ET w• independent of and additional to any sum in excess of Reasons t r market • value to which the owner may be entitled Audette J. because of special adaptability of the expropriated premises to his purpose. * * * * Where the owner is in actual occupation and sustains all this damage, the `additional allowance' is limited to ten per cent." I have taken the trouble of citing these extracts to show how the law now stands—and after having stated the law, it now becomes my duty to see whether this is a case which justifies the allowance of the ten per cent under the cases discussed, more especially the Hunting case. What strikes me in limine on the consideration of the present case is that the expropriation took place in 1913, and that it took seven years for the Yacht Squadron to find new premises. It may be proper to add that my sympathy goes with them in the circumstances. The object of the Yacht Squadron is the promotion of acquatic sport, with the great corinthian tradition behind it, a sport in which many people have taken great interest. The Squadron has certainly suffered materially from the fact of being disturbed, as shown by the evidence. It has been put to great trouble in moving, and being deprived of a site that was advantageous and which answered their purposes to an eminent degree—and after great delay, and pour-parlers and negotiations of several years, they have at last found a place because the Crown came to their rescue and by its benevolence helped them out. But that benevolence is exercised outside of the compen-
VOL. XXI. EXCHEQUER COURT REPORTS. cation clue the Squadron as owner of the premises taken from them. The Crown comes to their rescue, seeing what an awkward' position they are in, and I , have come to the conclusion that if ever there was a sc ' case where the ten per cent should be allowed, : this one, and to the $30,270.00 there will be added the usual ten per cent. T. F. Tobin, solicitor for plaintiff. J. A. Chisholm, for.Hon. L. G. Power et al. C. F. Tremaine for.Royal Nova Scotia Yacht Squadron and the Eastern Trust Company. 29244-12h 165 1921 THE V . . Ÿ , rnzA. YACHT S QUADRON• is HT ' • R, .Bfo Audette J. Judgment accordingly.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.