Case alert: Dartmouth Crossing Limited (Re), 2015 NSUARB 48
4/8/2015 9:19 AM
In Dartmouth Crossing Limited (Re), 2015 NSUARB 48, the Nova Scotia Utility and Review Board considered whether information provided by a landowner to an expropriating authority for an injurious affection claim was sufficient meet the requirements for “particulars” during the one year limitation period under the Expropriation Act.
Section 31(1) of the Act requires that a claim for compensation for injurious affection be made by the person suffering the damage or loss in writing with particulars of the claim within one year after the damage was sustained or after it became known, and, if not so made, the right to compensation is forever barred.
Halifax Regional Municipality expropriated three permanent easements and seven temporary easements from Dartmouth Crossing Limited, the owner of a large retail, commercial and residential development in Halifax, Nova Scotia. Shortly after the taking, the president of Dartmouth Crossing wrote to HRM describing the type of harm expected to occur, including permanent alteration of the land, stripping it of vegetation, and affecting the value of the residual land.
Counsel for both parties corresponded for some time after that, and the injurious affection was further discussed in those communications – all within the one year limitation period prescribed by the Expropriation Act. The Board found that one such letter from counsel provided a summary of the nature of the loss Dartmouth Crossing was claiming but, it did not provide any estimate, expressed in dollars, as to just how much.
Over a month before the limitation period expired, counsel for Dartmouth Crossing again wrote to HRM, including excerpts from an expert report which gave information on injurious affection.
At the hearing, HRM insisted that the obligation imposed on landowners by the Act is to provide full expert reports, and a specific dollar amount of compensation claimed during the one-year limitation period.
The Board held that the presence or absence of prejudice does not play a role in a decision under s. 31(1). Instead, under that provision, the only jurisdiction the Board has is to decide whether Dartmouth Crossing provided HRM with enough information to meet s. 31(1), within the time period allowed.
The Board found that, based on the evidence in this particular case, the one year began to run when the work was completed, as Dartmouth Crossing stated that as of that date, Dartmouth Crossing knew that it had suffered some damage or loss, and did not dispute that the one-year time period began to run on that date.
The Board ultimately found that Dartmouth Crossing had met the requirements of the Act. In regards to what constitutes “particulars,” the Board held that while this term is undefined in the statute, the relevant caselaw leads to the conclusion that s. 31(1) requires only that a claimant disclose to the expropriating authority (in this case, HRM) sufficient information:
- to inform the expropriating authority of the existence of the claim;
- to inform the expropriating authority of the nature of the claim;
- to allow for preservation of evidence.
This case is notable, as it gives guidance to all parties to an expropriation of the type of information that is required to fulfill the requirements of an expropriation act that requires particulars within one year after injurious affection was sustained or became known to a landowner. This assists landowners in meeting those obligations, and expropriating authorities in assessing whether the information provided is sufficient to meet the requirements of the Act.
If you have questions or would like to discuss this topic further, please contact Jeremy P. Smith at Patterson Law at 1-888-897-2001.
Please note that this article is meant to provide information only and is not intended to confer legal advice or opinion. If you have any further questions please consult a lawyer. Please note as well that many of the statements are general principles which may vary on a case by case basis.