Bevin Ledrew as Administrator CTA DBN of the Estate of Patrick O'Brien Applicant And: Province of Newfoundland v. Labrador, 2018 NLSC 123

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : LeDrew v. Newfoundland and Labrador (Minister of Transportation and Works) , 2018 NLSC 123 Date : June 05, 2018 Docket : 201801G1137 Between: Bevin Ledrew as Administrator CTA DBN of the Estate of Patrick O'Brien Applicant And: Province of Newfoundland and Labrador as represented by the Minister of Transportation and Works Respondent Before: Justice Vikas Khaladkar Place of Hearing: St. John’s, Newfoundland and Labrador Dates of Hearing: March 6, 2018 May 17, 2018 June 4, 2018

Summary:

Although the parties have settled their differences on account of an expropriation proceeding, they were unable to agree with respect tothe quantum of costs. Costs of the application are awarded to the Applicant on a party and party basis and in accordance with Column 3of the

Schedule of Costs. Appearances: Michael Crosbie, Q.C. Appearing on behalf of the Applicant Suzanne Orsborn Appearing on behalf of the Respondent Authorities Cited: CASES CONSIDERED: Alliance Pipeline Ltd. v. Smith, 2011 SCC 7 , 2011 S.C.C. 7; Thoreson v. Alberta (Minister ofInfrastructure), 2007 ABCA 272; Hill v. Nova Scotia (Attorney General), [1997] S.C.J. No. 115, [1997] 155 D.L.R. (4th) 767. STATUTES CONSIDERED: Expropriation Act, R.S.N.L. 1990, c. E-19; National Energy Board Act, R.S.C. 1985, c. N-7. RULES CONSIDERED: Rules of the Supreme Court, 1986, S.N.L. 1986, c. 42, Sch. D.

REASONS FOR JUDGMENT Khaladkar, J.: INTRODUCTION [1] On October 26, 2010 Her Majesty the Queen in right of Newfoundland and Labrador gave notice under the ExpropriationAct, RSNL 1990, c. E.-19 that it was expropriating 0.238 hectares of land on Blackmarsh Road, in the City of St. John’s, in the Provinceof Newfoundland and Labrador. [2] The property was taken for the building of the Team Gushue Highway. However, the expropriation file languished untilDecember, 2015 when Michael Crosbie, Q.C. became involved. [3] There then ensued a series of exchanges.

I am not sure that they can be properly characterized as negotiations. As a result ofwhich monetary settlement was offered by the Province, retracted, replaced by a lower amount and, eventually, eclipsed by the positionthat nothing would be payable until title to the property was properly secured or all potential beneficiaries of the estate were in a positionto accept the terms of the expropriation. [4] Owing to the delays, the Applicant brought an application for mandamus compelling the Minister to refer the matter to thePublic Utilities Board.

On today’s date the parties advised that they had reached an agreement by virtue of which the matter would bereferred to the board. However, the parties wished to make representations with respect to the awarding of costs. Applicant Argues [5] Mr. Crosbie, Q.C. asked that costs be awarded on a solicitor client basis. He felt that there needed to be consequences for thegovernment’s inaction in this matter but, more so, he took the position that full indemnity costs should be granted as a matter of course inexpropriation cases – subject, of course, to taxation and a reasonableness criterion. [6] Mr.

Crosbie referred the Court to Alliance Pipeline Ltd. v. Smith, 2011 SCC 7 , 2011 S.C.C. 7, which, in turn,referred to Thoreson v. Alberta (Minister of Infrastructure), 2007 ABCA 272.

In the latter case the court said, in part at paragraph 23, asfollows: 23. … A statutory right to legal, appraisal and other costs is something quite different from a determination of discretionary litigationcosts by a trial judge, and while the judge must address the issue of reasonableness and special circumstances, these issues are addressedwithin the context of a recognition that the costs are part of the expropriation award. [7] The statutory right to legal, appraisal and other costs is dealt with in the Expropriation Act at

section 34, which states asfollows:

Board may award costs 34.

(1) The board may award costs in respect of a hearing before it under this Act but the costs shall be taxed by a taxing officer of the Supreme Court in accordance with the scale in the Appendix to Rule 55 of the Rules of the Supreme Court, 1986 .

(2) Expenses in connection with a hearing held by the board shall include costs of counsel, engineers, valuators, stenographers, accountants and other assistants employed by the board as well as the salaries and expenses of the members of the board while employed in and about the hearing.

(3) Where the compensation awarded by the board in a case is greater than the sum that the minister offered in writing for the land that was expropriated or detrimentally affected, the minister shall pay costs and all expenses in connection with the hearing held by the board.

(4) Where compensation awarded does not exceed the sum offered, the party which refused the offer shall pay costs and all expenses in connection with the hearing held by the board.

(5) Where in respect of land expropriated or detrimentally affected no sum was offered before expropriation, costs and all expenses in connection with the hearing held by the board shall be paid by the party designated by the board [ 8 ] It is clear that the board’s jurisdiction to award costs is limited to that which is available under the Appendix to Rule 55 of the Rules of the Supreme Court, 1986 . The legislation does not contemplate the awarding of costs in excess of Court’s

schedule of costs except under s. 34(3) where the amount offered by the Minister was less than the amount awarded by the board. In that instance, the expenses in connection with the hearing, including costs of solicitors, may be awarded against the Minister. [ 9 ] Mr. Crosbie cited the Supreme Court of Canada’s decision in Hill v. Nova Scotia (Attorney General) , [1997] S.C.J. No. 115, [1997] 155 D.L.R. (4th) 767 for the proposition that solicitor client costs may be awarded in expropriation cases.

However, s. 35 of the Expropriation Act in force in Nova Scotia at that time expressly provided the statutory authority for the payment of solicitor client costs. The Nova Scotia legislation has since been amended. [ 10 ] Similarly, Mr. Crosbie referred to the Supreme Court of Canada’s decision in Alliance Pipeline Ltd. v. Smith for the proposition that costs may be awarded on a solicitor client basis. However, in that case the Supreme Court of Canada was dealing with the issue of solicitor client costs within a specific statutory framework, namely, the National Energy Board Act, R.S.C. 1985, c.

N-7, which mandated the payment of solicitor client costs under certain circumstances. [ 11 ] No such statutory framework exists in this case. Respondent Argues [ 12 ] Ms. Orsborn submitted that there had been delay on the part of each of the parties and, therefore, that the parties ought to bear their own costs. If costs were to be awarded, she submitted that they should be party and party costs under Column 3. CONCLUSION [ 13 ] I am of the opinion that there is no statutory entitlement to costs on a solicitor and his client basis in this matter. However, I do agree with Mr.

Crosbie, Q.C. that, at least since December, 2015 there has been inordinate delay resulting, eventually, in the necessity of bringing an application for a prerogative writ. The author of a significant portion of that delay was the Respondent. [ 14 ] Accordingly, party and party costs are awarded to the Applicant under Column 3 of the

Schedule of Costs. _____________________________ Vikas Khaladkar Justice