Madge v. Alberta (Infrastructure and Transportation), 2011 ABQB 287

Court of Queen ’ s Bench of Alberta Citation: Madge v. Alberta (Infrastructure and Transportation), 2011 ABQB 287 Date: 20110504 Docket: 0706 00398 Registry: Lethbridge/Macleod Between: Paul Madge Plaintiff - and - Her Majesty the Queen in Right of Alberta as represented by The Minister of Infrastructure and Transportation Defendant _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice C.L.

Kenny _______________________________________________________ [ 1 ] The Plaintiff Paul Madge (“Madge”) seeks appropriate compensation and other relief for property owned by him which was expropriated by the Defendant Her Majesty the Queen in Right of Alberta as represented by The Minister of Infrastructure and Transportation (“Alberta”). BACKGROUND [ 2 ] Alberta expropriated 4.32 acres of land owned by Madge just south of the Town of Milk River, Alberta in order to twin the number 4 highway which runs from the Canada - U.S. border crossing at Coutts, north to Lethbridge.

The land is described as a portion of the North East Quarter, Meridian 4, Range 16, Township 2,

Section 21.

[ 3 ] Madge owned a total of 59.79 acres which is bordered on the west by the highway and on the other three sides by the Milk River. In 1987, Alberta purchased 7.17 acres of the land from Nola Madge for the development of an Interpretive Centre. In August of 2004, the Town of Milk River purchased one acre of the land, the price for which included an easement over the rest of the land for access to the one acre.

This land was right on the river and was needed by the town to service an upgraded raw water infiltration system to be installed for the Town of Milk River. [ 4 ] Alberta required a portion of the lands for the twinning of the highway and so filed a Notice of Intention to Expropriate on April 19, 2006. Madge objected. An inquiry was held in June of 2006 pursuant to s. 15(8) of the Expropriation Act , R.S.A. 2000, c. E-13 (the Act): The inquiry officer shall inquire into whether the intended expropriation is fair, sound and reasonably necessary in the achievement of the objectives of the expropriating authority.

The Inquiry Officer found that it was. [ 5 ] The Notice of Proposed Payment and the Proposed Payment along with an appraisal were served on Madge’s counsel on October 17, 2006. Madge does not agree with the appraisal and seeks other compensation under the Act . THE ISSUES 1) What are the damages attributable to disturbance? 2) Should Madge be compensated for the soil removed from the land? 3) What is the market value of the land which was expropriated? 4) What are the damages for injurious affection? 5) What are the ancillary awards for interest, tax, and costs?

THE LEGISLATION [ 6 ] The parties rely on the following sections of the Act : 29(3) Notwithstanding subsection (1), when the expropriation is by the Crown, the owner may elect to have the compensation fixed by the court and in that case the provisions of this Act relating to determination of compensation by the Board apply with all necessary modifications to the proceedings before the court. ... 41 The market value of land expropriated is the amount the land might be expected to realize if sold in the open market by a willing seller to a willing buyer. 42

(1) When land is expropriated, the expropriating authority shall pay the owner the compensation as is determined in accordance with this Act .

(2) When land is expropriated, the compensation payable to the owner must be based on

(2) When land is expropriated, the compensation payable to the owner must be based on (

a) the market value of the land, (

b) the damages attributable to disturbance, (

c) the value to the owner of any element of special economic advantage to the owner arising out of or incidental to the owner's occupation of the land to the extent that no other provision is made for its inclusion, and (

d) damages for injurious affection. 43 If the owner of the land that is being or was expropriated is or was in occupation and as a result of the expropriation it is or was necessary for the owner to give up occupation of the land, the value of the land is the greater of (

a) the market value of the land determined as set out in

section 41, or (

b) the aggregate of (

i) the market value of the land determined on the basis that the use to which the expropriated land was being put at the time of its taking was its highest and best use, and (ii) damages for disturbance. 44 In determining the amount of compensation payable, no allowance shall be made on account of the acquisition being compulsory except where unusual circumstances exist for which no provision for compensation is contained in this Act . 45 In determining the value of the land, no account may be taken of (

a) any anticipated or actual use of the land by the expropriating authority at any time after the expropriation; (

b) any value established or claimed to be established by or by reference to any transaction or agreement involving the sale, lease or other disposition of the land, if that transaction or agreement was entered into after the commencement of expropriation proceedings; (

c) any increase or decrease in the value of the land resulting from the development or the imminence of the development in respect of which the expropriation is made or from any expropriation or imminent prospect of expropriation; (

d) any increase or decrease in the value of the land due to the development of other land that forms part of the development for which the expropriated land is taken; (

e) any increase or decrease in value that results from the imposition or amendment of a land use bylaw, land use classification or analogous enactment made with a view to the development under which the land is expropriated. ... 50 The expropriating authority shall pay to an owner other than a tenant, in respect of disturbance, such reasonable costs and expenses as are the natural and reasonable consequences of the expropriation, including, (

a) when the premises taken include the owner's residence, (

i) an allowance of (A) 5% of the compensation payable in respect of the market value of that part of the land expropriated that is used by the owner for residential purposes, or (

B) the actual amount proved with respect to those items, whichever is the greater, to compensate for inconvenience and the costs of finding another residence, if the part of the land so used was not being offered for sale on the date of the expropriation, and (ii) a reasonable allowance for improvements, the value of which is not reflected in the market value of the land; (

b) when the premises taken do not include the owner's residence, the owner's costs of finding premises to replace those expropriated, if the lands were not being offered for sale on the date of the expropriation; (

c) relocation costs, to the extent that they are not covered in clause (

a) or (b), including

(

i) moving costs, and (ii) legal and survey costs and other non-recoverable expenditures incurred in acquiring other premises. ... 56 When only part of an owner's land is taken, compensation shall be given for (

a) injurious affection, including (

i) severance damage, and (ii) any reduction in market value to the remaining land, and (

b) incidental damages, if the injurious affection and incidental damages result from or are likely to result from the taking or from the construction or use of the works for which the land is acquired. 1) What are the damages attributable to disturbance? [ 7 ] Alberta agrees that there was a small portion of Madge’s land that Alberta disturbed during construction. That land needs to be re-seeded and looked after until it returns to the state it was in before disturbance. Mr. Madge believes the cost will be about $5,000 to do that.

Alberta agrees to pay that sum. 2) Should Madge be compensated for the soil removed from the land? [ 8 ] Alberta originally proposed to expropriate a narrow strip of the Madge land for the construction of the highway. They later decided that they needed access to the river at a certain location in order to put in spurs to prevent long term erosion. Alberta then added a triangle portion of land (the triangle) to the expropriation.

The expropriation documentation and the submissions to the inquiry officer in 2006 indicate that the triangle was to be acquired for the purpose of building an access road from the highway to the river so that spurs could be built along the river bank.

The inquiry officer found the expropriation of all of the lands including the triangle to be fair, sound and reasonably necessary in achieving the objectives of Alberta to construct, develop and maintain the upgraded Highway 4 adjacent to Milk River. [ 9 ] In the end, the access road was never built and the spur next to the triangle was never constructed, although three others spurs were constructed further south on the river . The triangle had a large hill on it.

The evidence is that the soil from the hill was used primarily for the building of the new highway with some of it given to the railway to help shore up the rail tracks. [ 10 ] Madge argues that he should be paid for the soil in addition to the land. Alberta argues that it is their land and they can do what they want with it. [ 11 ] All witnesses who gave evidence on the value of soil, or “borrow” as it is often called, agree that it is worth about one dollar per square metre if sold on the open market.

The best evidence available to the court on the quantity of soil removed from the triangle comes in a letter from Amec, who are engineers involved in the project. They indicate that approximately 10,820 square metres of soil was removed from the triangle area. [ 12 ] It is the policy of the Alberta Government not to pay for soil. In a letter from Minister Ed Stelmach, as he then was, dated September 2001 to MLA Don Tannas, Minister Stelmach indicates that Alberta Transportation does not pay for clay or other non granular road building materials as generally they do not have a market value.

Gravel is paid for by volume or weight. He then goes on to indicate that often the removal of “borrow” is a benefit to the landowner as it improves the usability of their land, assuming the

landowner retains title to the land. [13] Here there would be no benefit to Madge, as the land was expropriated. There was evidence that there was a “borrow” pit notfar from the Madge land where soil could be purchased. If Alberta needed additional “borrow”, they would have had to pay for it. [14] Mr. Hempsey worked part time as a consultant to the project and had worked at Alberta Transportation for 37 years beforethat. He indicated that a highway is usually built from dirt available along the right of way for the road. Sometimes however, they mayneed to “borrow” soil.

If so, the general practice was to approach a nearby landowner, pay him for the soil on the basis of acreage,replace the topsoil at the end of the “borrow”, and then return the land to the owner. He stated that the removal of the soil was generallydone in consultation with the land owner and that “borrowing” often improved the land for the landowner, by moving a hill out of theway for farming or creating a pond for someone who wanted water, for example. He did not know if additional soil was required for thisproject. [15] Mr.

Bresee, who provided the appraisal on the value of the land for Alberta, appraised the land as agricultural land usable forhobby farming or a country residence. He did not see any value to the soil. His valuation for all of the land which was expropriated wasless than the value of the soil removed from the triangle. Agreeing with Mr. Hempsey, he also stated that generally, when building a roadthat the fill is simply moved from one spot to another. If extra fill is required it is purchased from a nearby land owner. If there was avaluable resource such as gravel, they would make adjustments to the price.

He stated that soil, in an expropriation such as this, has nomarket value. [16] The evidence is clear that the triangle was expropriated for the purpose of building an access road to the river andconstruction of a spur next to the land. Neither occurred, although these things may be necessary 10 or 15 years down the road. A largehill on the land was removed and the soil from that hill was used to build the road. Had that land not been expropriated, Alberta wouldhave purchased soil for the road from Madge or another local landowner.

By virtue of the expropriation, Alberta did not have to purchasesoil for the highway which would have cost them approximately $10,820. They also now own the land. [17] Madge argues that the words “construction” and “development” in the Notice of Intention to Expropriate should not beinterpreted to mean that Alberta could remove a significant quantity of soil from the land for use in building the highway without statingthat intention in the Notice of Intention and paying for the same. They refer to Fraser v. R, [1963- S.C.R. 455, (SCC),40 D.L.R. (2d) 707.

In that case, the Court found that the expropriating authority was actually acquiring the land for the rock fill thatwould be used for the causeway. The potentiality of that use had a value at the date of the expropriation for which the landowner shouldbe compensated. [18] Madge further submits that the equitable principles of unjust enrichment are available to determine compensation under theexpropriation proceedings. Alberta takes issue with this and points to

Section 42 of the Act which states that the authority “shall” paythe owner the compensation as is determined in accordance with this Act and the compensation “must” be based on four enumeratedfactors. They say that the landowner cannot resort to other principles of compensation in the face of such mandatory language. I agree.The Act is a complete code for the determination of compensation to a landowner in the context of an expropriation. [19] Section 42(2)(

c) of the Act includes in compensation the value of any special economic advantage to the owner, to the extentthat no other provision is made for the inclusion of that benefit. This concept is also reiterated in

section 44 of the Act. Madge argues thatthe soil clearly had an economic advantage to him. In the end, the contractor needed additional soil and so would have had to buy it onthe open market were it not for the hill on the land Alberta expropriated. Alberta gave the soil on the land to their contractor for use inbuilding the highway so the contractor did not need to purchase it elsewhere. [20] Alberta says the availability of soil on the land which could be used for the road construction is not a special economicadvantage to Madge for which no other provision is made.

They refer to a number of decisions which distinguish this case from Fraser(supra). In Fraser, the acquisition was for the purpose of acquiring the rock on the land for construction of the causeway. In this case andothers cited by Alberta, the land was acquired for a purpose other than the resources on the land. Even where those resources are utilizedincidental to construction the land must be valued at its market value. That resources may affect the market value of the land, however, isa consideration which might increase the appraisal of the land. Refer to Nishik v.

Irricana (Village), 1980 Carswell Alta 486, MillerPaving Ltd. v. Toronto (Metropolitan), 1979 CarswellOnt 1723, Slattery Management & Realty Ltd. v. New Brunswick (Minister ofHighways), 1976 CarswellNB 54.

[ 21 ] I am satisfied that this case is distinguishable from Fraser . The land was expropriated for the twinning of the highway. This included access to the river to install spurs which would assist in controlling erosion and ice jams on the river which may eventually affect the new highway. This was also the finding of the inquiry officer. The triangle was not expropriated for the purpose of using the soil in the construction of the highway, although this did occur. Therefore, the value of the soil was not a special economic advantage under Section 42(2) (

c) for which separate compensation should have been provided. It is, however, a consideration in the ultimate determination of the market value of the property. 3) What is the market value of the land which was expropriated? [ 22 ] Three witnesses gave evidence with respect to the market value of the expropriated land. They were Mr. Bresee for Alberta, and Mr. Fritz and Mr.

Maynard for Madge. [ 23 ] The market value of the land is the greater of the amount the land might be expected to realize if sold on the open market by a willing seller to a willing buyer ( s. 41 of the Act ) or the aggregate of the market value based on its highest and best use at the time of taking and damages for disturbance.( s. 43 (

b) of the Act). The highest and best use is that which is most likely to generate the highest present value of net returns to the property in the foreseeable future. [ 24 ] Mr. Fritz is an architect and was qualified as an expert to give opinion evidence with respect to architecture, land use development, re-zoning and planning. In his view, the highest and best use of the property would be as a commercial property. He says it is less than ideal for agricultural land since it is of a limited size and isolated between a river and the highway.

In looking at its commercial viability, he refers to the Canamex Corridor which is part of the new highway constructed with the expropriated lands, the nearby Writing on Stone Provincial Park, the Interpretive Centre next to the land, and the proximity to the Canada - U.S. border. [ 25 ] The regional plan and land use by-laws permit highway commercial use. The property is located in what is called an urban fringe.

It would be possible to apply to have the property used as a truck stop as suggested by Madge. [ 26 ] Madge confirmed that he bought the land with the intention of using it for his business which was the buying, selling and storage of machinery. It was never purchased for farm land. He had to move his business into town, as at the time he was not permitted to use the land for his business. [ 27 ] The land had a large hill on it and so was very visible. He had thought more recently of developing it into a truck stop or other commercial operation, although he had not conducted any feasability study in that regard.

He had other expressions of interest over the years in commercial use of the property. In 2003, he was approached by a developer who wanted to subdivide the land and build on it. That never went beyond an expression of interest. The town of Milk River also expressed interest over the years in buying the land to expand the 9 hole golf course which is directly across the river from the Madge land. [ 28 ] The administrator for the county of Warner gave evidence. He confirmed that the property was part of the urban fringe and highway commercial use of the land was a discretionary use.

He confirmed that there had been limited development in the area in the last 20 years or so but that in 2006 the county would have welcomed a truck stop due to the increased tax assessment to the county. He expects that the new highway will increase the traffic flow through the area. [ 29 ] The mayor of Milk River gave evidence as well. He indicated that there is significant large truck traffic through the town as they transport goods across the border. Currently, on the north side of the town there is a pad for truckers to park overnight which is owned by the town. It is largely undeveloped at this time.

He says that anywhere from 15 to 60 trucks park there overnight with the average being 20 a night. Many truckers park overnight at the Interpretive centre which is right next to the Madge land. He confirmed there is the need for a truck stop and the property is suitable for such providing there was proper access. The town would be supportive of such a proposal. [ 30 ] Mr. Maynard was called as a witness by Madge and qualified as an expert to give opinion evidence in appraisal of land. In his view, the highest and best use of the property was agricultural, with the potential for urban expansion.

He was of the opinion that the new road would add value into the future for commercial development which he believed was realistically projected to occur within 10

to 15 years. [ 31 ] With few similar properties sold in the area, both the appraiser for Alberta and Mr. Maynard had difficulty determining the market value of the land. Mr. Maynard referred to five comparable properties. Two of those were the earlier Madge sales - the 1 acre parcel to the town to upgrade their water treatment facilities and the sale of land to Alberta for the Interpretive Centre. In addition, there was a sale in 2010 by Alberta of extra land they did not need for the highway project. Finally, there were two pieces of agricultural land which were off the highway.

After making the adjustments he considered appropriate, he valued the land expropriated at $36,000 by the direct comparison approach. [ 32 ] Mr. Maynard acknowledged that the demand was not there now for the redevelopment but it did have that potential in the near future perhaps 10-15 years out. However, he was concerned that the potential has been lost as a result of the access road. With the access road as it is, the land is limited to agricultural use. [ 33 ] Alberta cross examined Mr. Maynard on the comparables he used.

They did not think it appropriate to use the previous Madge sales nor the 2010 sale from Alberta. Mr. Maynard agreed that the comparables were not ideal however with so few comparables he believed that all the ones he chose were relevant with the appropriate adjustments. Of particular note, given the characteristics of the property expropriated, it was appropriate to use the earlier Madge sales along with the Alberta sale. [ 34 ] Mr Bresee also gave his opinion of value on behalf of Alberta. In his view, the property had no potential other than what it was currently being used for.

He saw no potential for commercial development and at best the land would be used as agricultural or perhaps a hobby farm or other home based business. Two of the five comparables he used were also used by Mr. Maynard. Another comparable turned out to be a non arms-length transaction which appears as if it was for estate planning purposes. He acknowledges that the subject land is superior to all of the comparables as it has river access. He did not consider the sale from Madge to Alberta for the Interpretive centre as it was a long time ago and he thinks the price then reflected an element of injurious affection.

He did not include the 1 acre parcel to the town because it was too small and he believed the negotiation on it was too quick. The evidence was that the negotiations took place over about 5 months and both the town and Alberta agreed to the price as each was contributing to the price. [ 35 ] On the issue of potential in the foreseeable future, Mr. Bresee says potential for development 20 to 25 years in the future is not foreseeable but that anything less than that is. He does not see any potential for this land other than as a country residence for the next 20 - 25 years.

He considered highway commercial use of the property but decided after talking to a representative from the town, the county, and local realtors that it was not viable in the foreseeable future. He was of the view that there was no need for a truck stop even though the highway upgrade was to accommodate increased traffic and trade. He spoke to Mr. Madge in 2002 when he did a first appraisal on the land and acknowledged that Mr. Madge may have spoken to him at that time about plans for commercial use of the property. [ 36 ] Mr.

Brisee provided a value for the property of $2,150 per acre for a total of $9,300. [ 37 ] The experts disagree on the highest and best use of the property which directly affects the values they have placed on the property. After hearing the evidence of Mr. Madge, Mr Fritz, the mayor of Milk River, and the representative of the county of Warner, I am satisfied that it is reasonable in the foreseeable future that the property would be used as highway commercial property.

That use is permitted under the land use by-laws, is within the realm of probability rather than speculative, interest in commercial use has been expressed in the past, and such a use seems reasonable in light of the particular characteristics of this land adjacent to a newly upgraded highway which is expected to increase traffic and trade between Canada and the U.S. [ 38 ] I therefore accept the value placed on the land by Mr Maynard and find the value of the expropriated land to be $36,000. 4) What are the damages for injurious affection? [ 39 ] Compensation to an owner for expropriated land includes damages for injurious affection ( s. 42(2) (

d) of the Act ). Madge alleges that the partial taking of his land has resulted in a reduction in the market value of the remaining land. This relates primarily to the new access road put in by Alberta (s. 56 of the Act) The remaining land is approximately 39 acres.

[ 40 ] Madge indicates that the original access to his land, before the expropriation for the Interpretive centre, was level and used for trucks and equipment. His Quonset, in which he stores a great deal of old and antique machinery, backed on to this access. Once the land was taken for the Interpretive centre, a new access road was put in which was also relatively level but was further from the Quonset . After this expropriation the new access road is worse than ever in his view.

The remaining land is accessed through a ditch next to the highway, is longer with a slope to it and has two curves from the highway into the property. [ 41 ] Madge advises that he was not consulted with respect to the access road and was never given any options with respect to the road. In his view, it was an afterthought. He wanted the new access road to go through the Interpretive centre and then onto his property. It is difficult to get in and out in the winter; he has to walk into his property from the Interpretive centre to access the Quonset.

The road has not been plowed in the winter by Alberta, although it is their responsibility to do so. He had planned to use the property for a commercial site but cannot do so because of the turn into it and its poor condition. [ 42 ] Mr. Gidzinski was the project manager for the project. He thought the new access road had about a five percent (5%) grade and was intended only for field access, that is one vehicle per day with no trailers. He said the access road was not in the original plans but revised later.

He acknowledged that it was not an average grade, was not what Madge had before, and could present a hazard in the winter if it ices up. [ 43 ] Mr. Brownbridge was also a project manager involved in the project. He indicated that the grade on the new access road was less than the old access road as it was over a much longer distance. He also confirmed that a number of options were considered for the access road, including going through the Interpretive centre, however Alberta wanted the access road on the Crown right of way.

He did not know if Madge was ever consulted on the location of the access road and confirmed that the location of the access road was revised during construction. [ 44 ] Bruce Madge, the son of Madge, had numerous pictures of the land before and after the construction. These included pictures of the new access road. He confirmed that he and his father used to take hay off the land and use the road to bring equipment in and out of the Quonset. His pictures show pooling of water in the right of way which flows onto the remaining Madge land at the approach to the land. [ 45 ] Mr.

Maynard, called as an expert appraiser by Madge, gave a value for injurious affection in his report of $147,000. He said this is the decrease in the value of the remaining land as a result of the expropriation. He had examined the land in 2003 and at that time saw an approach to the land which was the same level as the highway. He assumed that any new approach road would be realigned but would still be level. In his view, the road, as it is now, completely changes the dynamics of the property.

It will greatly impact the ability to develop the property as there is now about a 25 foot drop from the highway down to the access to the property. It would be fine for machinery but not other types of vehicles. [ 46 ] Mr. Maynard was surprised at the elevation of the highway. It has created a situation where you look up to the highway. Before the expropriation, there was a large hill on the property which created an overview of the surrounding areas. In his view, the expropriation has definitely created a loss to the value of the remaining property.

It is zoned as urban fringe and a discretionary use includes single lot commercial. The potential has been limited as a result of the access to the property. Any development would require the construction of a proper access road. Its use is now limited to use as an agricultural road. [ 47 ] Mr. Maynard valued the remaining Madge property for the purposes of injurious affection at $35,000 to $40,000 an acre. If part of the remaining property could have been used as a commercial development, the access road has severely restricted that use. He believes 10 acres of the remaining land would be impacted.

After providing a value for the 10 acres, reducing the value per unit based on the balance of the acreage and discounting for a longer development time line, he values the injurious affection at $147,000. [ 48 ] Mr. Bresee gave evidence as an expert appraiser for Alberta. He appraised the property in 2006 for the purpose of determining compensation to Madge as a result of the expropriation. When he appraised it no construction had started and he has not been back to the property since and so has never seen the access road.

He gave no compensation in his report for injurious affection because he understood that access would be from the Interpretive centre and that it would be the same or similar to the access road before construction.

[ 49 ] When shown pictures of the new access road, he was still of the opinion that there was no injurious affection. He acknowledged that there was a slope to the access road and that it might be difficult to climb in the winter but he was of the view that it would have no bearing on the value of the remainder of the property. He has assessed the highest and best use of the property to be a hobby farm or country residential and as long as there is adequate access it would have no impact on the value of the remaining property.

He says the road is safer because it is accessed off the turnoff to the visitor centre and not off the highway. [ 50 ] As it is often said, a picture is worth a thousand words. There were many pictures entered into evidence in this trial which show the previous access road and the new access road as it relates to the property. It is clear that there will be significant difficulties in accessing the property using certain types of vehicles particularly in the winter.

The evidence was that the road has not been maintained by Alberta which makes it virtually impossible to access the property in winter other than by walking in. The road runs along a ditch, has a long gradual decline and contains two curves, one at the top and another at the bottom. The new highway has been built up considerably, leaving the rest of the Madge land lower than the road and looking up to it. This affects the access road. It appears, as Madge indicated, that the access road was an afterthought. Both Mr. Maynard and Mr. Bresee expected an access road similar to the one that existed before.

That is clearly not what has happened. This has affected what the remaining property can be used for. I am satisfied that the remaining Madge property has suffered from injurious affection. [ 51 ] I am not satisfied that a formulaic analysis can be done with respect to this head of compensation. What is clear is that improvements must be made to the access road. Such improvements would have had to be made to the old access road in any event to accommodate the use to which Madge wanted to put the property. At the present time, the curve and low lying aspect of the road create severe use restrictions.

This affects the value of the rest of the land, but as Mr. Maynard indicated, approximately 10 acres are the most adversely affected. I set a value for injurious affection at $20,000. 5) What are the ancillary awards for interest, tax and costs? [ 52 ] The parties agree that the Bank of Canada prime rate, compounded annually, would be a just rate of interest as contemplated in section 66(1) of the Act with respect to compensation for the land. Interest shall be paid from August 2006 until payment. Interest on the damages for disturbance are calculated from the date of the award until payment. [ 53 ]

Section 39 of the Act indicates that the owner is entitled to reasonable legal, appraisal and other costs incurred for the purpose of determining the compensation payable. The parties may agree to those costs failing which they may submit to me, in writing, those costs which they do not agree on for my decision.

Costs shall include compensation to Madge for his time spent in advising counsel, preparing for trial, attending trial and generally dealing with the claim. [ 54 ] Mr Kevin Keith from KPMG set out a formula for the determination of the tax which Madge will have to pay on the compensation received by him as a result of this decision. The parties will utilize that formula to calculate the tax on the total sum of $61,000 awarded herein as compensation. Madge shall be entitled to receive funds sufficient to pay that tax in addition to the compensation ordered herein. Heard on the 17 th day of January, 2011.

Dated at the City of Calgary, Alberta this 27th day of April, 2011.

C.L. Kenny J.C.Q.B.A. Appearances: Steve Denecky, Q.C. and Adam Faust for the Plaintiff Christopher D. Holmes and Cynthia R. Hykaway for the Defendant