Halifax (Regional Municipality) v. Turner Drake & Partners Ltd.

Halifax (Regional Municipality) v. Turner Drake & Partners Ltd. Court Court of Appeal Date 1998-04-14 Citation 1998 NSCA 77 Docket CA 142492 Judge/Registrar/Adjudicator Cromwell, Thomas A. (Honourable Justice); Freeman, Gerald B. (Honourable Justice) (CA); Clarke, Lorne O. (Honourable Chief Justice) Document Type Decision Relations Library Sheet - Halifax (Regional Municipality) v. Turner Drake & Partners Ltd. - 1998 NSCA 77 - 1998-04-14 - Library Sheet Decision Content Date: 19980414 Docket: C.A. 142492 NOVA SCOTIA COURT OF APPEAL Cite as: Halifax (Regional Municipality) v. Turner Drake & Partners Ltd., 1998 NSCA 77 Clarke, C.J.N.S.; Freeman, Cromwell, JJ.A. BETWEEN: HALIFAX REGIONAL MUNICIPALITY, ) Peter D. Darling a body corporate ) for the Appellant ) Appellant ) Robert L. Barnes, Q.C. and ) Kelly A. Sullivan - and - ) for the Respondent ) Turner Drake ) ) Respondent Charlton not ) appearing TURNER DRAKE & PARTNERS LIMITED, ) a body corporate, and ERVIN F. CHARLTON ) ) Respondents ) Appeal Heard: ) April 14, 1998 ) ) ) Judgment Delivered: ) April 14, 1998 ) ) ) ) ) ) ) ) THE COURT: Appeal dismissed per oral reasons for judgment of Cromwell, J.A.; Clarke, C.J.N.S. and Freeman, J.A. concurring. CROMWELL, J.A.: (Orally) This is an appeal from a decision of the Nova Scotia Utility and Review Board. Charlton applied in January of 1996 to the Board for a determination of the compensation claimed by him with respect to the cost of an appraisal prepared by the respondent Turner Drake. The appraisal related to land expropriated by the appellant in 1981. That expropriation was abandoned in 1995. For the purposes of this appeal, the claim, based on ss. 20 and 35 of the Expropriation Act, R.S.N.S. 1989, c. 156 as it stood at the relevant time, was for the cost of one appraisal of the expropriated land and interest of 2% per month on the amount unpaid after 30 days. After a full day of hearing, the Board gave a 15-page reserved decision and ordered the appellant to pay the cost of the appraisal report with interest as claimed. It also awarded both Charlton and Turner Drake what it referred to as solicitor and client costs fixed at $1000.00 and $1850.00 respectively. This appeal is restricted to questions of law and jurisdiction: s. 30, Utility and Review Baord Act, S.N.S. 1992, c. 11. The appellant argues that in determining that the cost of the appraisal was reasonable, the Board erred in law by failing to make an appropriate analysis of the bill and further erred in law by ordering interest to be paid. In short, the appellant contends that the Board acted unreasonably. The Board reviewed the evidence, considered whether the account was reasonable and made a finding that it was. Its reasons make this clear: The amount of the claim for fees is proven to a balance of probabilities to the satisfaction of the Board, having considered the opinions expressed pro and con. The Claimant has proven its base costs reasonable within the meaning placed on the Act. The Board considered the evidence before it and made a finding which is supported by that evidence. This was a finding of fact. There is no basis for this Court to interfere with it: Nova Scotia (Attorney General) v. Powell L.E. Properties Limited (1996), 154 N.S.R. (2d) 367 (C.A.) at p. 371. It is not necessary, for the purposes of this case, to deal further with the proper scope of review by the Board of an account such as this. As for interest, the contract between Charlton and Turner Drake provided for it and entitlement to interest has been established by previous decisions of this Court (see Powell, supra). The fact that Turner Drake did not press its client for payment does not negate the entitlement to interest. These grounds of appeal fail and the appeal must be dismissed. The respondents ask for costs on a solicitor and client basis. Costs were awarded on that basis by the Board. As a general rule, solicitor and client costs are awarded by this Court only in rare and exceptional circumstances: see Brown v. Metropolitan Authority (1996), 150 N.S.R. (2d) 43 (C.A.) at p. 55. However, in expropriation matters the general principle is that the statutory provisions providing for compensation should be applied so as to provide the owner with indemnification for losses and expenses associated with the taking unless compensation is clearly limited by the relevant statutory provisions. We note that in Williams v. Nova Scotia (Attorney General) (1995), 144 N.S.R. (2d) 19 (C.A.), a case analogous to this one, this Court awarded the successful respondents “the costs actually incurred by them on the appeal to be taxed”. We, therefore, order that the respondent Turner Drake shall have its costs of this appeal on a solicitor and client basis to be taxed. Cromwell, J.A. Concurred in: Clarke, C.J.N.S. Freeman, J.A. C.A. No. 142492 NOVA SCOTIA COURT OF APPEAL BETWEEN: HALIFAX REGIONAL MUNICIPALITY, a body corporate ) ) Appellant ) - and - ) REASONS FOR ) JUDGMENT BY: TURNER DRAKE & PARTNERS ) LIMITED, a body corporate, and ) CROMWELL, J.A. ERVIN F. CHARLTON ) (Orally) Respondent ) ) ) ) ) ) )