Milne v. Canada
The appeal was allowed because the Federal Court erred in its factual assessment of noise impact and it was inappropriate to finalize costs before the compensation claim was redetermined; the Federal Court's costs award was set aside and the matter remitted for fresh determination of compensation and costs, with the...
Source-derived case information.
- Citation
- 2023 FCA 138
- Parties
- Appellant: Shawn Somerville Milne; Respondent: His Majesty the King
- Court
- Federal Court of Appeal
- Jurisdiction
- Canada
- Judgment Date
- 13 June 2023
- Procedural Posture
- Expropriation Appeal (compensation and Costs) / Federal Court of Appeal Decision Remitting Matter for Redetermination
- Outcome
- Appeal allowed; Federal Court's costs award set aside; matter remitted to Federal Court for redetermination of compensation and costs; appellant awarded costs of this appeal at the high end of Column IV.
- Legal Topics
- Compensation for Disturbance and Injurious Affection, Costs, Redetermination, Evidence of Noise Impact, Reasonableness of Claim
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Shawn Somerville Milne
Appellant
His Majesty the King
Respondent
Procedural Posture
Expropriation Appeal (compensation and Costs) / Federal Court of Appeal Decision Remitting Matter for Redetermination
Legal Issues
- 1 Whether the Federal Court erred in finding no perceptible increase in noise and dismissing the compensation claim
- 2 Whether the Federal Court's costs award and finding of unreasonableness of the claim should stand given remittal for redetermination
- 3 Whether it was appropriate to determine costs of the expropriation proceedings before the compensation matter was finally resolved
Ratio Decidendi
The appeal was allowed because the Federal Court erred in its factual assessment of noise impact and it was inappropriate to finalize costs before the compensation claim was redetermined; the Federal Court's costs award was set aside and the matter remitted for fresh determination of compensation and costs, with the appellant awarded costs of this appeal at the high end of Column IV.
Court Disposition
Appeal allowed; Federal Court's costs award set aside; matter remitted to Federal Court for redetermination of compensation and costs; appellant awarded costs of this appeal at the high end of Column IV.
Orders
- Set aside the Federal Court's costs award (2022 FC 63).
- Remit the compensation claim to the Federal Court for redetermination.
Full Case Text
Judgment text and source record
1 paragraphs
Milne v. Canada Court (s) Database Federal Court of Appeal Decisions Date 2023-06-13 Neutral citation 2023 FCA 138 File numbers A-44-22 Decision Content Date: 20230613 Docket: A-44-22 Citation: 2023 FCA 138 CORAM: PELLETIER J.A. RIVOALEN J.A. ROUSSEL J.A. BETWEEN: SHAWN SOMERVILLE MILNE Appellant and HIS MAJESTY THE KING Respondent Heard by online video conference hosted by the Registry on November 22, 2022. Judgment delivered at Ottawa, Ontario, on June 13, 2023. REASONS FOR JUDGMENT BY: PELLETIER J.A. CONCURRED IN BY: RIVOALEN J.A. ROUSSEL J.A. Date: 20230613 Docket: A-44-22 Citation: 2023 FCA 138 CORAM: PELLETIER J.A. RIVOALEN J.A. ROUSSEL J.A. BETWEEN: SHAWN SOMERVILLE MILNE Appellant and HIS MAJESTY THE KING Respondent REASONS FOR JUDGMENT PELLETIER J.A [1] This is an appeal from the Federal Court’s decision on costs reported as 2022 FC 63, following the dismissal of Mr. Milne’s claim for compensation for disturbance and injurious affection as a result of the expropriation of a part of his land to permit the expansion of an existing railway corridor. The Federal Court found that Mr. Milne had not proved that the expansion of the corridor had a perceptible increase on the noise level at his residence. [2] In reasons released concurrently with these, this Court, having found that the increased noise from the expansion of the railway corridor had a severe impact at Mr. Milne’s residence, allowed his appeal from the dismissal of his claim for relief and returned the matter to the Federal Court for a redetermination of his claim. [3] The Federal Court’s decision on costs turned, in part, on the failure of Mr. Milne’s claim for relief and, in part, on the Court’s view that Mr. Milne’s claim for relief was unreasonable. [4] Given that Mr. Milne’s claim for relief is being returned to the Federal Court for redetermination, the Federal Court’s view of Mr. Milne’s claim and its reasonableness may change following the redetermination. This may affect the Court’s view of Mr. Milne’s entitlement to costs under the special regime set out in the Expropriation Act, R.S.C. 1985, c. E‑21. [5] As a result, it would be inappropriate to deal with the matter of the costs of the expropriation proceedings before they are finalized. Therefore, this appeal will be allowed and the Federal Court’s costs award will be set aside, subject to a fresh determination as to costs being made at the conclusion of the Federal Court’s redetermination of the amount of compensation to which Mr. Milne is entitled is completed. [6] For the same reasons given in the appeal on Mr. Milne’s entitlement to compensation, I would award Mr. Milne his costs to be assessed at the high end of Column IV. "J.D. Denis Pelletier" J.A. “I agree. Marianne Rivoalen J.A.” “I agree. Sylvie E. Roussel J.A.” FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-44-22 STYLE OF CAUSE: SHAWN SOMERVILLE MILNE v. HIS MAJESTY THE KING PLACE OF HEARING: by online video conference DATE OF HEARING: November 22, 2022 REASONS FOR JUDGMENT BY: PELLETIER J.A. CONCURRED IN BY: RIVOALEN J.A. ROUSSEL J.A. DATED: june 13, 2023 APPEARANCES: Sean Gosnell Ian Mathany For The Appellant Jacqueline Dais-Visca Wendy Wright For The Respondent SOLICITORS OF RECORD: M&H LLP Toronto, Ontario For The Appellant Shalene Curtis-Micallef Deputy Attorney General of Canada For The Respondent