The King v. Elgin Realty Co. Ltd.

J.

P.

CRERAR G. W. McNAUGHTON

(LIQUIDATORS;

ADDED

PARTIES RE- SPONDENT,

BY SUGGESTION) ............

ON APPEAL FROM THE EXCHEQUER Crown-Expropriation of land-Amount of compensation-Appellate

J.-This is an appeal from the judgment of the late Mr. Justice Maclean,

President of the Exchequer Court of Canada, pronounced on the 26th of February, 1942, granting to the Elgin Realty Company, Limited, a sum of $497,500, with interest from the 17th of August, 1939, in full compensation for its lands and premises expropriated by the appellant.

The Crown offered $408,640 and the defendant claimed $600,000. The Crown now appeals, and the respondent also entered a cross-appeal, which was later abandoned, so that we are concerned only with the main appeal.

The lands taken are located in Ottawa on Elgin street, between Queen and Albert streets; they have a frontage of 132 feet on both streets, and of 198 feet and 8 inches on Elgin street, and the superficial area is of 26,388 square feet. On these expropriated lands, were originally three buildings: one, which was the largest, known as the Grand Union Hotel; the second, the Elgin Building Annex, and the third was the Elgin Cottage. In 1918, additional floors were added to the Annex and alterations were made so that they could be used as an office building. From that time until the date of expropriation, the building has been

E.jx used by the appellant under a lease subject to cancellation on three months notice. The total costs of the lands, buildings and repairs amounted to approximately $350,000. The only point in issue, apart from the question of interest, and with which I will deal later, is whether the amount awarded by the learned President should be varied by this Court.

In expropriation cases it is settled, I think, that when determining the amount, a court of first instance has acted upon proper principles, has not misdirected itself on any matter of law, and that when the amount arrived at is supported by the evidence, a Court of. Appeal ought not to disturb its finding. This rule has for many years been the guiding principle in this Court, and a reference may be made to Vizina v. The Queen (1).

At page 16, Mr. Justice

Patterson, with whom concurred Strong J., Fournier J., and Taschereau J., said:- In order to arrive at the conclusion he has reached, the

President of the Exchequer Court has taken many factors into consideration and has examined them in a very detailed and precise manner. After giving a full and complete description of the property, after taking into account its purchase price, all the expenditures made for repairs, alterations and improvements, the annual rent derived from the property and its gross and net incomes and the particular conditions of the lease, the learned President examined with much care the special adaptability of the property for particular purposes, by reason of its size and location, and the most advantageous use that could be made of it; he considered the value given to the property by the widening of Elgin street, the public improvements made in the vicinity, the value of neighbouring properties, the prices paid when the Sun Life property and the

Russell Hotel were purchased, and after weighing the evidence of the experts, and the various reasons brought for- EN ward by them, he came to the conclusion that the sum of $497,500 was a fair compensation to be paid to the All these various factors were examined in view of giving to the property its value at the time of the expropriation. And as to the postponed value of the property over its present market value, the President said that it was: He also said:

I believe that this is an accurate statement of the law, for the value to the owner consists in all advantages which the land possesses, present or future, but it is the present value alone of such advantages that falls to be determined. The future advantages, therefore, may be taken into account in determining the value of the property, but in so far only as they may help to give to the property its present value.

(Cedars Rapids Manufacturing and Power Co. v. Lacoste et al.) (1).

My conclusion is, therefore, that the President did not act on any wrong principles of law, and I see no reason for interfering in the amount of the award.

In his reasons for judgment, the learned trial Judge does not deal with the question of interest, but, the formal judgment grants interest at the rate of 5 per cent. from the 17th of August, 1939, until the date of the judgment of the Exchequer Court. The respondents claim that interest should now be granted until the date of the judgment of this Court.

The appellant submits that in the event of the appeal being dismissed, no direction as to interest can be given by this Court, and that the Exchequer Court judgment should remain unaltered.

Section 32 of the same Act deals with the question of interest and reads as follows:- An appeal having been taken to this Court, I believe that the date of the judgment of this Court becomes "the date when judgment is given" within the meaning of the above section.

It would indeed be unfair to hold otherwise. The property was producing a very substantial revenue, of which the respondent is now deprived; and the only compensation that can be given for this loss is by way of interest on the money awarded, which stands in place of the property which has been expropriated and from which the appellant derives revenues.

It has been submitted that under section 53 of the Exchequer Court Act, the payment of interest is left to the discretion of the Minister of Finance. The Minister has under this section power to allow interest at the rate of 4 per cent., but this discretion may be exercised only from the date of the final determination of the amount, until the moneys are paid by the Government.

My conclusion is that the respondent is entitled to interest at the rate of 5 per cent. per annum, from the date the land has been taken, to the date of the judgment of this Court, and that this appeal should be dismissed with costs.

Appeal. dismissed with costs.

Respondent entitled to interest as stated in above reasons for judgment.