Harrison Blueberry Enterprises Ltd. v. Nova Scotia (Utility and Review Board)

Harrison Blueberry Enterprises Ltd. v. Nova Scotia (Utility and Review Board) Court Court of Appeal Date 2006-03-07 Citation 2006 NSCA 26 Docket CA 242343 Judge/Registrar/Adjudicator Oland, Linda L. (Honourable Justice); Cromwell, Thomas A. (Honourable Justice); Saunders, Jamie W. S. (Honourable Justice) (CA) Document Type Decision Relations Library Sheet - Harrison Blueberry Enterprises Ltd. v. Nova Scotia (Utility and Review Board) - 2006 NSCA 26 - 2006-03-07 - Library Sheet Decision Content NOVA SCOTIA COURT OF APPEAL Citation: Harrison Blueberry Enterprises Ltd. v. Nova Scotia (Utility and Review Board), 2006 NSCA 26 Date: 20060307 Docket: CA 242343 Registry: Halifax Between: Harrison Blueberry Enterprises Limited Appellant v. Her Majesty the Queen in right of the Province of Nova Scotia Respondent Judges: Cromwell, Saunders & Oland, JJ.A. Appeal Heard: January 25, 2006, in Halifax, Nova Scotia Held: Appeal dismissed without costs, as per reasons for judgment of Saunders, J.A.; Cromwell & Oland, JJ.A. concurring. Counsel: Douglas A. Caldwell, Q.C. & Dennis James, for the appellant Stephen T. McGrath, for the respondent Reasons for judgment: [1] The province expropriated a portion of the appellant’s lands located at Westchester, Cumberland County in 1995 during the construction of a 45-kilometre section of the 104 Highway referred to as the Cobequid Pass. [2] Claiming that the 9.687 acre portion of lands taken by the province was critical to the operation of his blueberry farm and very valuable in its own right for its potential in growing blueberries, the appellant sought compensation for the value of the land expropriated, substantial business losses, and injurious affection leading to damages exceeding $800,000. [3] After eleven days of hearings in 2003 and post-hearing submissions in 2004, Wayne D. Cochrane, Q. C. sitting as a single Commissioner of the Nova Scotia Utility and Review Board, by decision dated December 16, 2004, awarded the appellant total compensation of $49,900. [4] The fourteen grounds set out in the appellant’s notice of appeal were largely abandoned such that the appellant’s appeal was confined to three points. [5] The appellant says the Board erred in refusing to award: 1. compensation for injurious affection to the market value of the appellant’s remaining Westchester II lands on the basis that these lands were woodlands with blueberry potential, thereby attracting a price premium as set out by the respondent’s own appraiser, 2. compensation for injurious affection to the market value of the remaining Westchester II lands because a prudent purchaser would discount the value of the lands as a result of the requirement for a salt protection buffer, as attested to by the respondent’s own appraiser, and 3. compensation for injurious affection, being the business loss caused by delay of development due the failure of the respondent to provide proper access to the appellant’s remaining lands. [6] The appellant acknowledges that these three matters are questions of fact or mixed law and fact, both of which draw a standard of review of patent unreasonableness. See, for example, Johnson et al v. Attorney General of Nova Scotia (2005), 234 N.S.R. (2d) at ¶ 46. A patently unreasonable decision has been described as one where the defect is obvious and identified immediately; the type of error that leaves no doubt the decision is defective; one that is “clearly irrational”; or so flawed that no amount of curial deference could justify leaving it undisturbed. See, for example, Ryan v. Law Society of New Brunswick, [2003] 1 S.C.R. 247 at ¶ 52 ff. [7] Underpinning all three of the appellant’s claims for compensation lies the principal argument that the Board ignored or misapprehended material evidence which led it to make findings which were patently unreasonable; or the Board made findings and reached conclusions which were unsupported by any evidence at all. It is by virtue of these critical mistakes that the appellant says the Board’s refusal to award damages under these three heads of compensation, satisfies the standard of patent unreasonableness and must be set aside. [8] With respect, I disagree. In my opinion there was ample evidence before the Board to support each of its material findings of fact or mixed law and fact which developed in the consideration of these specific heads of compensation. Neither am I persuaded that the Board erred by ignoring or misapprehending the evidence relating to any of these issues. [9] On the contrary, after a detailed fact-finding process and an exceptionally thorough decision comprising some 461 pages, the Board painstakingly analysed and assessed the evidence before arriving at a compensation award that was, in my view, well supported on the record and perfectly reasonable. [10] Largely endorsing the incisive arguments set out in the commendable factum filed by Mr. McGrath on behalf of the respondent, I see no merit to the appeal and would direct that it ought to be dismissed. [11] This is a tribunal appeal. There will be no order as to costs. Saunders, J.A. Concurred in: Cromwell, J.A. Oland, J.A.