Armoyan Properties Ltd. v. Haverstock Estate

Armoyan Properties Ltd. v. Haverstock Estate Court Court of Appeal Date 1995-05-02 Citation 1995 NSCA 72 Docket CA 107362 Judge/Registrar/Adjudicator Freeman, Gerald B. (Honourable Justice) (CA); Hallett, J. Doane (Honourable Justice) (CA); Jones, Malachi C. (Honourable Justice) (CA) Document Type Decision Decision Content C.A. No. 107362 NOVA SCOTIA COURT OF APPEAL Cite as: Armoyan Properties Ltd. v. Haverstock Estate, 1995 NSCA 72 Hallett, Jones and Freeman JJ.A. BETWEEN: ARMOYAN PROPERTIES LIMITED ) Meinhard Doelle ) for the Appellant Appellant ) ) - and - ) ) Darlene Jamieson ) for the Respondent ) ) Daniel W. Ingersoll ) for the Intervenor THE ESTATE OF SAMUEL HAVERSTOCK ) ) Respondent ) Appeal Heard: ) April 12, 1995 ) - and - ) ) HALIFAX COUNTY MUNICIPALITY ) ) Judgment Delivered: Intervenor ) May 2, 1995 ) ) ) ) ) ) ) ) THE COURT: Appeal dismissed with costs to the respondent Haverstock in the amount of $1200 plus disbursements per reasons for judgment of Jones, J.A.; Hallett and Freeman, JJ.A. concurring. JONES, J.A.: This is an appeal from a decision in the Supreme Court made under the Ditches and Watercourses Act, R.S.N.S. c. 132. The appellant, Armoyan Properties Limited (Armoyan) is the developer of a property at Hammonds Plains known as Kingswood West. A roadway constructed on the property runs parallel to lands of the respondent, the estate of Samuel Haverstock (Haverstock) to the west. Lots along the road separate the Haverstock boundary from the road. Armoyan proposes to convey the roadways in the development to the Nova Scotia Department of Transportation and Communications. The natural drainage from the Armoyan property is towards the Haverstock lands. The Transportation Department requires the consent of the downstream owner where no natural watercourse exists, before accepting the roadways. This is to avoid future claims for damage from flooding. In 1993 Armoyan requested that the Estate sign an Indenture consenting to Armoyan discharging run-off from the development at two discharge points onto the Haverstock lands. The Estate would not agree. Armoyan filed a requisition with the County of Halifax pursuant to s. 7(1) of the Ditches and Watercourses Act. The notice stated: "Sir, as the solicitor for the owner of lands at Hammonds Plains in the Municipality of the County of Halifax, commonly referred to as the Kingswood West Subdivision, I hereby inform you that the owner requires to construct a ditch or drain through said land, and finds it necessary to continue the same through adjacent lands owned by the Estate of Samuel Haverstock, and having failed to agree upon the construction of said ditch or drain, I require the engineer appointed by the Municipality for the purpose to attend at the offices of Stewart McKelvey Stirling Scales on the day of , 1993 at the hour of o'clock in the noon, to hear the parties and their witnesses, and to make an award under the provisions of the Ditches and Watercourses Act." In response to the notice the County appointed Dr. Donald Waller as the municipal engineer under the Act to resolve the dispute. Dr. Waller held meetings with the parties, heard submissions and viewed the site. The Estate took the position throughout that the proceedings were beyond the scope of the Act. On November 15, 1993, the engineer submitted his report to the County. Dr. Waller found that Armoyan was entitled to install a ditch or drain on the Haverstock lands subject to certain conditions. Armoyan was required to install and maintain the ditch at its expense. The report set out three possible options for the drainage system. Haverstock was given thirty days in which to select the appropriate option. The engineer would then approve the proposal. The engineer's fees were to be paid by Armoyan. On November 30th the Estate filed an appeal under s. 12 of the Act to the Supreme Court. Armoyan filed a cross-appeal respecting its obligation to pay the fees. The appeal was heard by Mr. Justice Gruchy. Justice Gruchy allowed the appeal. He found that the award did not comply with s. 9 of the Act in that it did not clearly define the limits of the ditch or drain. He also found that the Act did not provide a means by which Haverstock could be forced to accept the drainage without Haverstock's consent. He also held that the compulsory use of the Haverstock lands amounted to a compulsory taking or use thereof and therefore the Expropriation Act, R.S.N.S., c. 156 applied. He ordered that the engineer's fees be paid by Armoyan. By notice dated July 24, 1994 Armoyan appealed that decision. The County was granted leave to intervene. The main issues on this appeal can be stated as follows: 1. Did the trial judge err in deciding that the Ditches and Watercourses Act was not applicable because the Haverstock lands would not benefit by the construction and the Estate had not consented to the project? 2. Did the trial judge err in holding that the Expropriation Act prevented the Engineer from making an award under the Ditches and Watercourses Act? 3. Did the trial judge err in directing Armoyan to pay the Engineer's fees? There was a direct appeal from the award to the Supreme Court under s. 7 of the Ditches and Watercourses Act. That appeal provided for a complete review of the Engineer's award. While Justice Gruchy determined there was not a final award under the Act he concluded that it was not appropriate to refer the award back to the Engineer as in his opinion the Act did not apply. It is not necessary to deal with the first issue, that is the application of Ditches and Watercourses Act as in my view Justice Gruchy was correct in concluding that the provisions of the Expropriation Act precluded any award under the Ditches and Watercourses Act. Section 4 of the Expropriation Act provides as follows: "4(1) Notwithstanding any general or special Act, where land is expropriated or injurious affection is caused by a statutory authority, this Act applies. (2) The provisions of any general or special Act providing procedures with respect to the expropriation of land or the compensation payable for land expropriated or for injurious affection shall be deemed to refer to this Act and not the Act in question. (3) Where there is conflict between a provision of this Act and provisions of any other general or special Act, the provision of this Act prevails. The Ditches and Watercourses Act is similar to legislation in other provinces including the statute in Ontario in effect around the turn of the century. In McKenzie v. Township of Dover, [1965], 1 O.R. 688, Beardall, Co. Ct. J. had to consider the application of the Ontario Drainage Act in an action for damages resulting from the construction of a drain under the Act. All the proper procedures had been followed to allow for the construction of the drain under the Drainage Act. Beardall, J. stated at p. 690: "The plaintiff's action is based upon the contention that the provisions of the Expropriation Procedures Act, 1962-63, 1962-63 (Ont.), c. 43 by virtue of s. 2 thereof overrides the provisions of the Drainage Act, 1962-63, in so far as taking possession of the land is concerned. Admittedly the provisions of the Expropriation Procedures Act were not complied with, the defendant relying on the Drainage Act, 1962-63, as its guiding rule and authority. Both statutes were passed at the same session of the legislature. By proclamation the Drainage Act, 1962-63 became effective as of June 1, 1963, and the Expropriation Procedures Act, January 1, 1964. Section 2(1) of the Expropriation Procedures Act, reads as follows: 2(1) Notwithstanding any general or special Act, where land is expropriated or is injuriously affected by an expropriating authority in the exercise of its statutory powers, this Act applies. And ss.(4) of the same section reads: (4) Where there is conflict between a provision of this Act and a provision of any other general or special Act, the provision of this Act prevails. 'Land' by the Act is defined in s. 1(e) as follows: 1(e) 'land' includes any estate, term, easement, right or interest in, to, over or affecting land. There is no provision in the Act to exempt proceedings under the Drainage Act, 1962-63, from the provisions of the Expropriation Procedures Act. In the case of Rhodes et al v. Township of Raleigh (1898), 2 Clarke & Scully's Drainage Cases 141, Thomas Hodgins, Q.C., Referee, at pp. 143-4 says: But by conferring upon the municipality on the petition of a majority of the owners of land within such drainage area statutory powers to construct a drain or artificial watercourse for the use and benefit of those who thereby become co-adventurers, such municipality on behalf of such co-adventurers acquires a substantive right of entry upon, and user of, and easement over, the lands of the parties through which the drain is constructed; a right, use, and easement, which is thereafter protected from invasion, derogation, or obstruction by such parties and their assignees, or outside parties, so long as the drainage work exists. The rights of entry, user and easement thus acquired upon and over such lands is substantially a 'taking' or an 'expropriation' of a quantum of the estate and ownership of such parties in their respective lands; for it imposes on their estate and title the burden of the user of the soil occupied by the channel of the drain as a conduit for carrying the drainage water from the adjoining and upper lands, and the municipality on behalf of the co-adventurers, and for their use and benefit further acquires the right to enter upon such lands at reasonable times for the purpose of inspecting such drain, or removing obstructions, and of making necessary repairs and improvements. Though the owner's estate and ownership in the soil of the lands so used as the channel of the drain, are not eo nomine expropriated or vested in the municipality, or the co-adventurers, the acquisition of these rights of entry, user and easement are, as I have said substantially equal to a taking or an expropriation of the lands for the purposes of the drain, and their value should therefore be estimated, and dealt with on the same basic principle of full compensation as for lands taken and expropriated for public purposes under the Municipal Act. It would therefore appear from the wording of the Act and from the decision of the Referee that the Expropriation Procedures Act does apply to occupation of land for drainage works undertaken under the Drainage Act. I do not think it reasonable that the Legislature contemplated such a conflict, but I have to be governed by the ordinary meaning of words contained in the statutes. It would appear that attention should be drawn to this situation and appropriate wording inserted in one of the statutes to make fully clear what is intended as to which statute covers the proceedings. We come then to the relief claimed." Section 2 of the Ontario Expropriation Act was amended to provide: "2(3) This Act does not apply to the use of or injury to land authorized under the Drainage Act for the purposes of a drainage works constructed under that Act or to any proceedings in connection therewith." R.S.O. 1980, c. 148, s.2. No such amendment has been made to s. 4 of the Nova Scotia Expropriation Act. The appellant states in its factum: "The essence of Dr. Waller's award under the Act is to order the construction of a ditch, and to determine the party responsible for the construction. This, in the Appellant's respectful submission, is exactly what the Act is intended to do." In view of the very broad language used in s. 4 of the Expropriation Act I agree with the reasoning in the McKenzie case. Section 4 of the Expropriation Act precludes the making of an award under the Ditches and Watercourses Act which in any way affects the proprietary interests in the Haverstock lands. With respect Justice Gruchy was correct in so concluding. With respect to the third issue s. 9(1)(g) of the Ditches and Watercourses Act provides that the engineer shall fix "the amount of his fees and other charges and by whom to be paid". Justice Gruchy confirmed that the engineer's fees were to be paid by Armoyan. See also s. 15 of the Act. The application under the Act was made by the appellant for its own benefit. It did not succeed. The respondent had no interest in the proceedings. I agree with the trial judge's decision on fees. I would dismiss the appeal with costs to the respondent, Haverstock only in the amount of $1200.00 plus disbursements to be paid by the appellant. J.A. Concurred in: Hallett, J.A. Freeman, J.A.