2020 NLCA 31, 2020 NLCA 31

Willis Lynch, Wallace Lynch, Colin Lynch, Wilfred Lynch, and Reginald Lynch (appellants) v. City of St John’s (respondent) and Board of Commissioners of Public Utilities (intervenor) (18/97) Indexed As: Lynch v. St John’s (City) 2020 NLCA 31 6 C.A.N.L.R. 15 Court of Appeal of Newfoundland and Labrador Green, O’Brien and Goodridge JJ.A. September 11, 2020

Summary: In 2016 this Court held that land owned by the appellants within the St John’s Watershed Area had been constructively expropriated as of February 1, 2013. The Court determined that the appellants were entitled to seek compensation under sections 18 and 19 of the Expropriation Act . Failing an agreement on the price, the appellants could apply to the Board of Commissioners of Public Utilities to process their claim for determination of the amount to be paid.

The appellants applied to the Board for an interim payment of compensation based on the lower value offered by the respondent ($105,000.00 with 5% interest from February 1, 2013 until payment), professional costs and expenses related to the pursuit of the compensation claim up to November 30, 2017, professional costs and expenses related to the original claim leading to a declaration of constructive expropriation, the interim application expenses, 5% interest on the costs and expenses related to the compensation claim, the original declaration, and the interim application.

The Board ultimately made an interim award of $105,000.00 without any of the additional claimed costs and expenses or interest. These were left for a final determination at the compensation hearing. The appellants appeal that decision largely based on the fact that the Board had jurisdiction to make the requested order and should have done so. Held: Appeal allowed.

Green J.A. (O’Brien and Goodridge JJ.A. concurring): Based on the broad language of section 32(5) of the Expropriation Act , the plain and ordinary meaning of “award”, the objective of fully compensating landowners in a timely manner, and the absence of any language excluding a right to appeal, the Court has jurisdiction to hear an appeal of an interim order of the Board (paragraphs 22-40).

Regarding proceeding with the appeal, the uncompleted matter may be brought without leave since hearing the appeal will not delay or otherwise impact the compensation hearing before the Board, the respondent will not suffer any prejudice, good reason exists to hear the appeal in respect of access to justice concerns, and no good reason exists under the prematurity principle or otherwise to delay the appeal (paragraphs 41-64). Considering the “ Vavilov Trilogy”, based on the

interpretation of the present statutory right of appeal, the appellate standard of review as outlined in Housen applies giving the Court the authority, in the case of error, to make a decision that would have been made by the Board (paragraphs 65-77). Factors relevant in granting an interim order are: (

i) the strength of the claim, (ii) any circumstances likely (i.e., not speculative) to arise later, (iii) circumstances surrounding the claim (e.g., progress of the claim), (iv) any special circumstances affecting the claimant, and (

v) whether only a portion of the amount reasonably claimed as an interim order should be awarded (paragraphs 78-102). The Board failed to apply the proper considerations to determining whether interim orders were appropriate in the particular circumstances of this case (paragraphs 103-108)

There is a general entitlement to interest under the Expropriation Act. Considering the facts of this case and that the respondents did notidentify any consideration which would preclude the granting of interest, the appellants are entitled to 5% simple interest per annum onthe $105,000.00. Entitlement to compound interest is more appropriately left to the conclusion of the compensation hearing (paragraphs109-131). Regarding expenses related to the claim, under section 34(1) of the Expropriation Act, based on the analysis in Roberts and Bartlett, theBoard has jurisdiction to award interim costs.

It is appropriate to award interim costs as a proportion of the total amount claimed to datefor legal and appraisal costs. Legal costs may be claimed as party and party costs taxed pursuant to the scale contemplated by s. 34(1)(paragraphs 132-163). Because litigation expenses are causally connected to the ongoing compensation proceedings those costs are better determined at a laterstage (paragraphs 164-175). The Board should have dealt with certain issues in relation to the determination of costs and expenses before the end of the hearing.

It isappropriate that the appellants be awarded costs for the interim application on a party and party basis to be taxed, without prejudice tothe appellants’ right to apply for the ultimate costs disposition to be made by the Board (paragraphs 176-178). Cases cited: Lynch v. St. John’s (City), 2016 NLCA 35 St. John’s (City) v. Lynch, [2016] S.C.C.A. No. 390 Re Expropriation Act – Board of Commissioners of Public Utilities, 2020 NLSC 92 689799 Alberta Ltd. v. Edmonton (City), 2018 ABCA 212 Syncrude Canada Ltd. v. Alberta (Human Rights and Citizenship Commission), 2008 ABCA 217 Newfoundland Transport Ltd. v.

Newfoundland (Board of Commissioners of Public Utilities) (1983), 45 Nfld. & P.E.I.R. 76 (Nfld. C.A.) Canada (Border Services Agency) v. C.B. Powell Ltd., 2010 FCA 61 Newbould v. Canada (Attorney General), 2017 FCA 326 Canadian Natural Resources Ltd. v. Wood Buffalo (Regional Municipality), 2011 ABQB 220 Re Lackie Bros Ltd, [1978] N.J. No. 38 Labrador City (Town) v. Newfoundland and Labrador Hydro Inc., 2004 NLCA 61, 241 Nfld. & P.E.I.R. 81 Newfoundland and Labrador (Consumer Advocate) v. Newfoundland Power Inc., 2006 NLCA 20, 255 Nfld. & P.E.I.R. 24 Newfoundland and Labrador Hydro v.

Newfoundland and Labrador (Board of Commissioners of Public Utilities), 2012 NLCA 38, 323Nfld. & P.E.I.R. 127 Langor v. Spurrell (1997), (NL CA), 157 Nfld. & P.E.I.R. 301 Strata Plan K855 v. Big White Mountain Mart Ltd., 2014 BCCA 397 Newbould v. Canada (Attorney General), 2017 FC 326 UFCW, Local 1252 v. Cashin (1994), (NL CA), 124 Nfld. & P.E.I.R. 201 (Nfld. C.A.) Young v. Noble, 2016 NLCA 58 K.M. v. J.F., 2004 NLCA 67 Dunsmuir v. New Brunswick, 2008 SCC 9 Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 Bell Canada v. Canada (Attorney General), 2019 SCC 66 Canada Post Corp. v.

Canadian Union of Postal Workers, 2019 SCC 67 Housen v. Nikolaisen, 2002 SCC 33

Smith v. Alliance Pipeline Ltd., 2011 SCC 7 Dell Holding Ltd. v. Toronto Area Transit Operating Authority, (SCC), [1997] 1 S.C.R. 32 Diggen-Hibben Ltd. v. R., (SCC), [1949] S.C.R. 712 Matchim v. BGI Atlantic Inc., 2010 NLCA 9, 294 Nfld. & P.E.I.R. 46 Kirby v. Portugal Cove (Municipality) (1989), (NL CA), 74 Nfld.& P.E.I.R. 142 (Nfld. C.A.) Pawson v. Sudbury (City), (ON CA), [1955] O.R. 504, [1955] 3 D.L.R. 154, (Ont. C.A.) Young v. Dawe (1998), (NL CA), 160 Nfld. & P.E.I.R. 233, 156 D.L.R. (4th) 626 (Nfld. C.A.) Moriss v. British Columbia, 2007 BCCA 337, 69 B.C.L.R. (4th) 1 Roberts v.

Newfoundland and Labrador (Minister of Transportation & Works), 2005 NLCA 26, 247 Nfld. & P.E.I.R. 107 Bartlett v. Corner Brook (City), 2004 NLCA 50, 240 Nfld. & P.E.I.R. 49 Ravvin Holdings Ltd. v. City of Calgary, (1992) 1992 ABCA 262 , 5 Alta. L.R. (3d) 320 (CA) Mahone Bay (Town) v. Lohnes (1983), 59 N.S.R. (2d) 68 (N.S.T.D.) Manitoba v. Russell Inns Ltd., 2013 MBCA 46, 291 Man. R. (2d) 244 Young v. Young, (SCC), [1993] 4 S.C.R. 3, 108 D.L.R. (4th) 193 Statutes considered: Expropriation Act, RSNL 1990, c. E-19, sections 18, 19, 32(5), 34, 35, 36 City of St. John’s Act, RSNL 1990, c.

C-17 Public Utilities Act, RSNL 1990, c. P-47,

section 99 Judgment Interest Act, RSNL 1990, c. J-2, section 3(2)(

b) Rules considered: Rules of the Supreme Court, 1986, rules 55.15, 57.02(3), 57.02(4) Court of Appeal Rules, NLR 38/16, rules 7(i)(iii), 7(e), 7(n), 10(1), 35 Other: Macaulay, Sprague and Sossin, Practice and Procedure Before Administrative Tribunals (Toronto: Thomson Reuters, 2018) (loose-leaf),Vol 3, 22.1(

e) The Canadian Law Dictionary (Toronto: Law and Business Publications (Canada) Inc., 1980) Expropriation in Canada: A Practitioner’s Guide (Aurora, Ontario: Canada Law Book Inc., 1988) Counsel: Michael Crosbie Q.C., for the appellants; Ian F. Kelly Q.C., for the respondent; Peter A. O’Flaherty Q.C., for the intervenor. The appeal was heard on June 14, 2019 before Green, O’Brien and Goodridge JJ.A.

The following judgment was filed on September 11, 2020 by Green J.A. for the Court. ______________________________________________________________ Green J.A.: [ 1 ] This appeal involves the determination of: (

a) whether this Court has jurisdiction to entertain an appeal from the Board of Commissioners of Public Utilities (the Board) with respect to a ruling denying interim orders for the payment of interest, expenses and legal fees following the making of an interim order for compensation for expropriation of land; (

b) if jurisdiction to hear the appeal exists, whether this Court should nevertheless decline to hear the appeal until a final award of compensation is made; (

c) if the appeal should be proceeded with, what are the principles appropriate to the exercise of discretion to make consequential interim orders; (

d) whether the Board erred in declining to make any consequential interim orders in this case; and (

e) if the Board made material errors, whether this Court ought to make appropriate orders or remit the case to the Board for further determination. [ 2 ] For the reasons that follow, I am of the view that: this Court has jurisdiction to entertain the appeal; the Court should hear the appeal on the merits; and the Board erred in its refusal to make some of the interim orders that were requested by the appellants. [ 3 ] I would allow the appeal and make the interim orders that the Board ought to have made. BACKGROUND [ 4 ] In 2016, this Court held that land owned by the appellants (the Lynches) within the St.

John’s Watershed Area, as defined by the City of St. John’s Act, RSNL 1990, c. C-17 had been constructively expropriated as of February 1, 2013 as a result of the degree of restrictions on use imposed by the Act and applied by the City. See Lynch v. St. John’s (City), 2016 NLCA 35 . The Court further ordered that as a result of the constructive expropriation, the Lynches had a right pursuant to sections 18 and 19 of the Expropriation Act, RSNL 1990, c.

E-19 to file a claim for compensation with the City and, failing agreement on the amount of compensation, to process a claim for determination of the amount before the Board. [ 5 ] Dissatisfied with the result of this Court’s ruling, the City sought leave to appeal to the Supreme Court of Canada. Leave was denied in early 2017. See St. John’s (City) v. Lynch , [2016] S.C.C.A. No. 390. [ 6 ] Following denial of leave and in accordance with the ruling of this Court, the Lynches engaged counsel and an appraiser and submitted a claim for compensation to the City later in 2017.

The City rejected the claim and countered with a lesser amount. One major point of disagreement was with respect to whether the land should be valued on the basis of prospective residential use or on the basis of the existing restrictive watershed zoning. [ 7 ] On request of the Lynches, the City applied to the Board in March of 2018 to determine the appropriate level of compensation but raised certain preliminary issues.

First, they argued that the Lynches’ title was void because of non-compliance with certain conditions in the underlying Crown grant in the root of title and they therefore had no entitlement to any compensation. Secondly, they raised the question as to whether the Board should make a stated case to the Supreme Court, General Division for a determination of the appropriate compensation principles that should be applied.

The Board responded by ordering, in July 2018, that notice of the compensation application be given to the Crown and that a stated case be made to the Supreme Court. [ 8 ] Upon being notified, the Crown signified that it would not contest the Lynches’ title to the land. The stated case was heard in November 2019 and judgment answering the question posed by the Board as to the applicable compensation assessment principles was released on June 20, 2020. See Re Expropriation Act – Board of Commissioners of Public Utilities , 2020 NLSC 92 .

A notice of appeal of the decision on the stated case was filed by the Lynches on August 13, 2020. [ 9 ] From 2013, when the property was deemed to have been constructively expropriated, to 2018, when the Board ordered the stated case, the City had the benefit of control and use of the Lynches’ land for watershed purposes without having to pay anything for it.

Claiming that the City had the resources to drag out the compensation process as long as it wanted and thereby deny them access to their compensation entitlement, the Lynches applied to the Board for interim payment of compensation (calculated on the basis of the lower compensation offer made by the City) together with interest and certain interim costs and expenses. Those claims were itemized as follows: 1. Interim compensation of $105,000; 2. Interest on the compensation at 5% from February 1, 2013 until date of payment;

3. Professional costs and expenses related to the compensation claim up to November 30, 2017 (the “Compensation Claim Expenses”); 4. Professional costs and expenses related to the original litigation that led to the declaration of constructive expropriation (the “Expropriation Litigation Expenses”); 5. Solicitor and client costs associated with making the application for interim compensation and interim costs (the “Interim Application Expenses”); and 6.

Interest at 5% on the costs and expenses itemized in items 3, 4 and 5. [ 10 ] The Lynches asserted in their application that the significant costs associated with pursuing the constructive expropriation litigation and subsequent compensation process were causing hardship to them without any imminent prospect of receiving anything in return and that as a consequence the situation was inhibiting their ability to properly assert and pursue their compensation rights. [ 11 ] The City indicated to the Board that it was prepared to make a payment of the interim compensation amount of $105,000 upon conveyance by the Lynches of all their interests in the property without prejudice to their right to seek additional compensation, interest and costs.

In all other respects, however, it opposed the application. First, it claimed the Board had no jurisdiction to award any of the requested costs and expenses. Secondly, it asserted that even if the Board had jurisdiction, it ought to exercise its discretion not to make any award because all of the appropriate factors necessary to the exercise of that discretion could not be properly considered on an interim application.

Decision of the Board [ 12 ] The Board asserted that the Expropriation Act should be read in “a broad and purposive manner” so as to ensure that the landowner whose property is taken receives full compensation, which is the aim of the legislation. It rejected the City’s argument that the absence of any express provision providing for the making of an interim award meant that the Board had no jurisdiction to make an award on an interim basis.

It stated: … Taking a broad and purposive approach and construing the legislation in favour of the party whose property has been expropriated, the Board believes that an interim award may be appropriate in certain circumstances to ensure full compensation to a landowner whose property has been taken for public purposes. As an example an interim award may be appropriate where there has been undue delay during which the claimant has neither the land nor value of the land for an extended period.

During this time the landowner cannot enjoy the benefits of the ownership of the property, financial or otherwise, and may well be forced to incur and fund substantial costs to further the claim.

The Board believes that such a delay may, in some circumstances be inconsistent with the scheme which requires full compensation. … [ 13 ] This finding has not been appealed. [ 14 ] Having acknowledged that the aim of the legislation was to provide “full compensation to a landowner whose property had been taken for public purposes” and that, accordingly, the legislation should be interpreted to allow “an interim award” of compensation to ensure that the landowner would not be deprived of compensation for an extended period of time, the Board nevertheless concluded that no interim award of interest, costs or expenses should be made.

It ruled that such matters should be left for determination at the end of the compensation hearing. [ 15 ] The result was that the Board made an interim award of $105,000 (the amount of interim compensation the City had agreed to pay) but without any interest and without any of the claimed costs and expenses. ISSUES ON APPEAL [ 16 ] The Lynches assert that the Board’s decisions not to award interest on an interim basis and not to award, on an interim basis, any Compensation Claim Expenses, Expropriation Litigation Expenses or Interim Application Expenses were unreasonable.

They ask the Court to award interest on the interim compensation amount and to make costs and expenses orders either for the full amounts claimed or alternatively for a percentage of the full amounts. [ 17 ] They also seek solicitor and client costs on this appeal. [ 18 ] In response, the City submitted, as preliminary matters, that no appeal lies to the Court of Appeal from an interim order of the Board.

Alternatively, the City submitted that even if the Court has jurisdiction to entertain such an appeal, the Court ought to decline to entertain the appeal because the decision in question was merely procedural in nature, determining only the timing and order of decision- making.

Furthermore, the City argued that such interlocutory decisions should not be determined by way of interim appeal, thereby slowing down the resolution of the final compensation process. [ 19 ] On the merits, the City took the position that the decision was a discretionary decision which should not be interfered with unless the Board proceeded on a manifestly wrong principle or exercised it for an improper purpose.

The City submitted that the decision was, in the circumstances, demonstrably reasonable. [ 20 ] The Court granted intervenor status to the Board to make submissions on the nature, scope and sources of the Board’s jurisdiction, the Board’s practices and procedures regarding interim orders and whether the applicable legislation authorized an appeal from an interim order. On the question of whether an interim order was appealable, the Board took the position that the Court had no jurisdiction to entertain the appeal. [ 21 ] The issues for determination on the appeal can be restated as follows: 1.

Does this Court have jurisdiction to entertain an appeal from an interim order of the Board?

2. If the Court has such jurisdiction, should the Court nevertheless decline to hear the appeal? 3. On the merits, did the Board err in its decision not to award interest, Compensation Claim Expenses, Expropriation Litigation Expenses or Interim Application Expenses? 4. If the Board erred, what should this Court’s order be? 5. Are the appellants entitled to solicitor and client costs on the appeal?

Jurisdiction to Appeal an Interim Order [ 22 ] The right to appeal a decision of the Board relative to compensation for expropriation is found in the Expropriation Act : 32(5) The Minister or an owner of land that has been expropriated may, within 30 days after the date of the award, give to the other party notice of an appeal to the Court of Appeal against the findings of the board upon a question of law or fact in connection with the expropriation or upon the question of the amount of compensation awarded by the board. Subsection 32(5) contemplates an appeal following an “award”.

This term is not defined in the Act. The scope of the appeal must relate to the “findings” of the Board: - upon a question of law or fact “in connection with the expropriation”; or - upon the question of the amount of the compensation. [ 23 ] When compared to the right of appeal of Board “orders” relating to non-expropriation-related matters contained in s. 99 of the Public Utilities Act , RSNL 1990, c.

P-47 (which is limited to appeals on questions of jurisdiction or law and then only with leave of the Court) the right of appeal under s. 32(5) is quite expansive. [ 24 ] From this it can be concluded that, although the ultimate purpose of the expropriation hearing is to reach a final award of compensation for the land taken, an appeal is not limited to a legal or factual challenge to the quantum of the final award. Findings on questions of law or fact “in connection with the expropriation” can also be subjected to appellate review.

In principle, that would include decisions made during the process leading up to the final monetary award. [ 25 ] While it may be true that “the general rule is that statutory appeal rights from agency ‘decisions’ apply only to what amounts to final decisions” (Macaulay, Sprague and Sossin, Practice and Procedure Before Administrative Tribunals (Toronto: Thomson Reuters, 2018) (loose-leaf), Vol 3, 22.1(e)), the scope of the appeal right depends, in the end, on the wording of the legislative provision conferring the appeal right.

It is necessary to determine, from the language the legislature chose, interpreted in the context of the legislation as a whole and against its purpose, whether its effect was to limit this Court’s jurisdiction by denying appeals of any decisions other than against the ultimate disposition to be made by the Board. [ 26 ] Counsel for the City cited 689799 Alberta Ltd . v.

Edmonton (City), 2018 ABCA 212 in support of its submission that a statutory provision that provides for an appeal from a tribunal order, when construed in the context of a legislative scheme that placed emphasis on expedition in disposition, does not support a legislative intention to allow interim appeals.

With the greatest respect to the majority in that case, I believe they confused the question of whether the appeal court had jurisdiction to hear an appeal with the distinct question of whether, notwithstanding the existence of jurisdiction, the court should nevertheless decline to exercise that jurisdiction for policy and other reasons. The majority acknowledged that there would be “exceptional circumstances” where an appeal of an interim order might be appropriate. However, either the court has jurisdiction or it does not.

It is not open to the court to carve out an exception because it appears appropriate to do so. This is a circumstance that goes, rather, to identification of circumstances where a court with acknowledged jurisdiction should or should not exercise that jurisdiction. [ 27 ] The same can be said of the decision of the Alberta Court of Appeal in Syncrude Canada Ltd. v. Alberta (Human Rights and Citizenship Commission) , 2008 ABCA 217 which was also cited by counsel for the City.

A human rights tribunal seized with an employment-related religious discrimination complaint conducted a preliminary hearing to determine whether the party subject to the complaint was the proper party. The tribunal ruled that Syncrude was the complainant’s employer and was therefore the proper party. Syncrude purported to exercise its statutory right of appeal.

The Alberta Court of Queen’s Bench concluded that the decision of the tribunal was not subject to appeal because it was an interim one, not a final order, as the merits of the complaint had not been determined. [ 28 ] The Alberta Court of Appeal dismissed the appeal. However, it appears to have used different reasoning. The appellant in fact had conceded that the appeal right only applied to final orders (para. 5), but argued that the ruling in this case was in fact a final order because it finally decided that Syncrude had to remain as a party.

Berger J. emphasized that “the jurisprudence of this Court has consistently discouraged appeals from preliminary decisions and frowned upon fragmented litigation” (para. 8). He also concluded that there was no ultimate prejudice to Syncrude pursuing its lawful remedies regarding the preliminary ruling after the merits of the complaint had been adjudicated (para. 10). These considerations are more properly relevant to determining whether the court ought to decline to exercise jurisdiction rather than to whether jurisdiction exists.

It is to be noted that Berger J. did not at any point couch his reasoning in language using the word “jurisdiction.” He concluded that the appeal was “premature” and that “exceptional circumstances” warranting review of an interim ruling had not been made out (para. 13). Again, this is not language that is indicative of a conclusion that the court had no jurisdiction to entertain appeals from interim orders.

Syncrude is at least equally consistent with the court declining, for policy reasons, to entertain such an appeal than with declaring that there is no legal authority conferred by statute to entertain appeals from interim orders in any circumstances. [ 29 ] I prefer the view of the minority justice in 689799 Alberta Ltd . who emphasized the language of the statute (“appeal … from any determination or order”) as the key indicator as to whether the legislature intended to confer an appeal right, and contrasted it with other more restrictive legislation relative to other tribunals.

[ 30 ] The minority justice’s approach in 689799 Alberta Ltd . is consistent with the approach taken in this Court which has also placed a focus on the statutory language. In Newfoundland Transport Ltd. v. Newfoundland (Board of Commissioners of Public Utilities) (1983), 45 Nfld. & P.E.I.R. 76 (Nfld.

C.A.) , which dealt with an appeal of an interlocutory order of the Board relating to an application for a motor carrier licence, Morgan J.A. addressed the submission that no appeal from an interlocutory order lay to the Court under the language of s. 96 (now s. 99 ) of the Public Utilities Act : [8] The Board is a statutory body and any right of appeal must be found in the enabling statute and that right must be expressed in a reasonably clear manner, or it does not exist. The Public Utilities Act grants a right of appeal, in prescribed circumstances, from any order of the Board.

As there is nothing in the context restrictive of its meaning “any order” should, in my view, be construed as encompassing an order that is interlocutory as well as one that is final in its nature. [ 31 ] Does the fact that s. 32(5) of the Expropriation Act refers to an appeal from an “award” rather than an “order” make any difference?

I do not think it does. [ 32 ] The definition of “award” in The Canadian Law Dictionary (Toronto: Law and Business Publications (Canada) Inc., 1980) is: The determination or decision of a tribunal or court on the matter in controversy before it; to grant or adjudge. [ 33 ] On the plain meaning of the words used, there is no reason why the notion of an “award” should be differentiated from an “order” or should be limited to a final award of compensation. In this case the Board made an award of $105,000 on an interim basis but declined to make other interim monetary awards relating to interest, costs and expenses.

By any ordinary understanding, such a decision can be considered to be an “award” which should be subject to appeal. It was a determination of a matter in controversy before the Board. It cannot be suggested that a Board determination is only an award when a positive order is made, rather than one declining to award something. Both are, in the words of the Canadian Law Dictionary , a “determination or decision” on a matter in controversy before the Board.

Further it is a determination “in connection with the expropriation” within s. 32(5) of the Expropriation Act . [ 34 ] It was suggested that because the decision not to make an interim award of interest, costs or expenses merely postponed the decision on whether there should be compensation for these items until the final hearing and therefore could not be said to be a determination of any matter in controversy, those portions of the decision could not be an award. I do not accept this argument. The issue boils down to a matter of characterization. There was a decision of the Board on these matters.

It was a final decision not to make the requested interim award and to give the appellants immediate compensation that would defray their continuing litigation and hearing expenses. It is the decision not to do so , not the question of whether the Lynches should ultimately recover compensation for these items, that is the subject of the appeal.

That can clearly be characterized as a “determination or decision of a tribunal … on the matter in controversy before it”; in other words, an “award”. [ 35 ] The City also submitted that the language of the Expropriation Act , considered in context, leads to the conclusion that the legislature did not intend to confer a right of appeal against interim orders.

Counsel stressed that the scheme of the Act was that there should be an inexpensive and efficient hearing to determine compensation that would be inconsistent with allowing the process to be bogged down with potentially multitudinous appeals on preliminary matters. Counsel pointed to the provision in s. 32(5) that requires the Board to make its award on compensation in writing “within 60 days after it has been seized with the matter” unless the appropriate minister extends the time.

While it is certainly possible that an inference could be drawn from this that appeals against interim awards are not countenanced within such a scheme, I am not convinced that this alone is a significant enough signpost of legislative intention. [ 36 ] If ever there was a case where timelines relating to disposition of the ultimate issues in dispute were not observed, this case is it.

Since application was made to the Board in March of 2018, the matter has engaged preliminary arguments made by the City effectively pleading a jus tertii relating to the Lynches’ title, a submission that a case be stated to the Supreme Court, a decision to seek the Supreme Court’s opinion on the principles to be applied in setting compensation and a hearing in the Court (with an appeal to this Court on that issue). The City, along with the Lynches, has been complicit in taking positions which have delayed the determination of the ultimate issues in dispute.

It does not lie in the City’s mouth now to wrap itself in the flag of timeliness and efficiency when it suits its purposes. In fact, as the Lynches argued, this appeal is in reality a product of the compensation process not having been completed within 60 days.

Had the matter not been extended by the raising of preliminary issues and the reference to the Supreme Court, the Lynches might well have been in receipt of a compensation award, thereby making their application for an interim award unnecessary. [ 37 ] Further, as the Lynches pointed out, this appeal is not delaying the Board proceeding to deal with the ultimate compensation issue.

It is the Board itself that has chosen to delay the matter by referring the special case to the Supreme Court. [ 38 ] The City relied on a series of decisions dealing with judicial review which enunciated the principle of judicial non-interference (except in exceptional circumstances) with ongoing administrative processes when dismissing applications for judicial review of interim decisions or rulings made by a tribunal before the tribunal has completed its ultimate statutory task ( Canada (Border Services Agency) v. C.B. Powell Ltd. , 2010 FCA 61 ; Newbould v.

Canada (Attorney General) , 2017 FCA 326 ; Canadian Natural Resources Ltd. v. Wood Buffalo (Regional Municipality) , 2011 ABQB 220 ). These cases are not directly pertinent to the current issue. They relate to courts on a judicial review application exercising their discretion not to deal with the application before the ultimate tribunal decision has been made, relying on a doctrine sometimes described as the principle against prematurity.

They do not relate to the question whether, as a matter of statutory construction, the legislature intended to confer a jurisdiction on an appellate court to entertain an appeal from an interim decision. [ 39 ] I am satisfied that, given the broad general language employed in the appeal provision in the Expropriation Act , and the absence of any express provision excluding appeals from interim awards or even imposing a leave to appeal requirement, as well as the underlying principle of the legislation – as discussed in greater detail later in these reasons – to ensure that a landowner whose land is taken without consent for public purposes is fully compensated, s. 32(5) of the Act encompasses the potential for an appeal from a decision made in the course of a Board proceeding before the ultimate decision is rendered. [ 40 ] Whether or not the Court should decide to exercise that jurisdiction in a given case is, of course a different matter.

It is to that question which I now turn.

Discretion to Decline to Hear Appeal [41] If the Court has jurisdiction to hear an appeal, it follows that a litigant submitting an appeal within the scope of the Court’sjurisdiction should have a right to have that appeal heard and adjudicated. However, there are circumstances where the Court may decideto decline to hear the appeal on its merits or to delay the determination until a later time.

These circumstances are usually manifested by arequirement to obtain leave to appeal. [42] Usually, where there is to be a leave to appeal screening requirement, this will be signified by the legislature in the statuteconferring the right to appeal. For example, appeals from orders of the Board on questions of law or jurisdiction under s. 99 of the PublicUtilities Act are expressly subject to a requirement of “leave of a judge of the court.” This Court has on other occasions stated that leavewill be denied under this provision where (

i) it is not apparent that the appeal relates to the limited appeal jurisdiction conferred on theCourt, i.e. a question of law or jurisdiction (Re Lackie Bros Ltd, [1978] N.J. No. 38 [LexisNexus]); Newfoundland Transport Ltd. v.Newfoundland, supra) or (ii) the applicant cannot demonstrate a reasonably arguable case for success on appeal (Labrador City (Town)v. Newfoundland and Labrador Hydro Inc. 2004 NLCA 61, 241 Nfld. & P.E.I.R. 81; Newfoundland and Labrador (Consumer Advocate)v. Newfoundland Power Inc. 2006 NLCA 20, 255 Nfld. & P.E.I.R. 24; Newfoundland and Labrador Hydro v.

Newfoundland andLabrador (Board of Commissioners of Public Utilities), 2012 NLCA 38, 323 Nfld. & P.E.I.R. 127). [43] It is to be noted that the applicable appeal provision in this case (s. 32(5) of the Expropriation Act) does not contain anyrequirement on the appellant to first obtain leave to appeal. [44] Where grounds for denying leave, such as those under s. 99 of the Public Utilities Act, apply, the result is that the appeal will notbe heard at all. In other circumstances, however, the Court may deny leave where the effect is merely to postpone the determination ofthe issue until a later time.

This typically may occur where the appeal in question relates to a ruling or decision made where the ultimatehearing has not yet started or is still ongoing, i.e. the determination of the ultimate issue in dispute is uncompleted. [45] This Court has asserted jurisdiction to deny leave to appeal a decision in an uncompleted matter (formerly called an interlocutorydecision) even when a requirement for obtaining leave is not contained in statute: Langor v. Spurrell (1997), (NLCA), 157 Nfld. & P.E.I.R. 301.

This authority to impose a leave requirement for interlocutory decisions was subsequently recognized inthe Rules of the Supreme Court, 1986, at rule 57.02 (3), (4). These rules implicitly contained a presumption that interlocutory decisionsshould not be the subject of appeal until the case was fully completed, subject only to a limited number of exceptions, the burden ofestablishing the exceptions being on the party seeking leave to appeal. [46] More recently, this presumption against appeal of interlocutory decisions was effectively reversed.

The current Court of AppealRules, NLR 38/16 now contemplate that all decisions, even those in an uncompleted matter, are appealable without first having to seekleave. Instead, a responding party has the burden, on an application initiated by that party if he or she so chooses, of convincing the Courtthat, based on a number of enumerated reasons, the appeal from the decision or ruling should not be heard until the court below hasreached a final decision on the matters ultimately in dispute: rule 35. [47] Rule 7(

n) of the Court of Appeal Rules defines “uncompleted matter” as “a matter where the issues between the parties have notbeen determined by a final decision or order in the court appealed from” [emphasis added].

But rule 10(1) provides that the rules “shallapply with the necessary changes to an order appealed from a tribunal.” Further, by virtue of rule 7(i)(iii) an “order appealed from”includes “an order or decision made in an uncompleted matter” and, by virtue of rule 7(e), “court appealed from” includes a “tribunalfrom which an appeal lies to the Court.” [48] Accordingly, an appeal from a decision (not to award interim interest, expenses or costs) of a tribunal (in this case, the Board) inan uncompleted matter (the final determination of the extent of monetary compensation) may be presumptively brought without leave.Nevertheless, in accordance with rule 35, the responding party may seek to have the appeal struck “on the basis that the appeal shouldnot proceed until the matter has been completed.” The burden is on the responding party to convince the Court that the appeal should notproceed. [49] In this case, the respondent City did seek, both in its factum and by way of a separate application, to have the Lynches’ appealfrom the Board’s interim order struck out on the basis that it was premature. [50] Rule 35(1) lists the grounds on which a responding party may successfully argue that an appeal in an uncompleted matter shouldnot proceed until the matter has been completed: (

a) prejudice to a party if the appeal is heard before the matter is completed in the court appealed from; (

b) hearing the appeal before the matter is completed in the court appealed from would result in delay, inconvenience or an inefficientuse of judicial resources; or (

c) there is good reason for delaying an appeal until the matter is completed. Rule 35(2) also provides:

(2) Striking a notice of appeal under this rule does not prejudice the right of the appellant to include the same issues in an appeal whenthe matter has been completed in the court appealed from. [51] The City’s primary argument is that the Board’s order was essentially procedural in nature as it merely determined the time andorder of decision-making. Such decisions, made in exercise of the Board’s power to control its own procedure, should be rarelyinterfered with on appeal because they are quintessentially discretionary and do not determine any substantive rights.

It follows, says theCity, that this Court ought to decline to hear the appeal unless “exceptional circumstances” dictate otherwise (Strata Plan K855 v. BigWhite Mountain Mart Ltd., 2014 BCCA 397 at para. 15; C. B. Powell Ltd. at paras. 31-32). It further says that exceptional circumstancesdo not exist here.

[52] Citing C. B. Powell Ltd., at paras. 31-32 and a number of decisions of trial courts in other jurisdictions (Newbould v. Canada(Attorney General), 2017 FC 326 at para. 15, and Canadian Natural Resources Ltd. v. Wood Buffalo (Regional Municipality) 2011ABQB 220 at paras. 25-26), the City submits that the category of exceptional circumstances is a narrow one. The City further assertsthat this approach is also reflected in decisions of this Court such as UFCW, Local 1252 v. Cashin (1994), (NL CA),124 Nfld. & P.E.I.R. 201 (Nfld.

C.A.) where Marshall J.A. observed at 210: … the consideration of ultimate issues on appeal should be reserved as a general rule until the ultimate decision on the merits of the casehas been rendered.

While it is evident that procedural and discretionary rulings not directly affecting the ultimate outcome of the actionought not to be heard on interlocutory appeal, those involving substantive rights where the deciding forum continues to be seized with themerits of the action ought not, as a general rule, to be entertained either. [53] This policy position was enunciated before any provisions respecting leave to appeal were inserted in the rules of court.However, counsel for the City points out that in Young v.

Noble, 2016 NLCA 58, the view was expressed that the policies enunciated inUFCW and other cases in this Court should continue to “inform the

interpretation and application of rule 35 when a respondent makesapplication to strike out a notice of appeal of an uncompleted matter.” [54] This is correct so far as it goes. However, it is to be noted that none of the cases in this Court enunciate an “exceptionalcircumstances” test. Instead, UFCW refers to a “general rule” that leave should be denied with respect to appeals on procedural anddiscretionary rulings in uncompleted matters.

Young similarly states that interlocutory decisions that have no final effect on the merits ofa decision should “generally” not be appealable before the end of the hearing (para. 17). Young also asserted that “there therefore has tobe good reason to allow the procedural flow of pre-trial and trial proceedings to be interrupted by an interlocutory appeal” (para. 20). Similarly, in K.M. v.

J.F., 2004 NLCA 67 Rowe J.A. observed that the then applicable rule setting out the grounds for granting leave toappeal in interlocutory matters provided the “means for the Court of Appeal to turn aside appeals of interlocutory decisions, save wherecircumstances warrant their hearing” so as to “allow the trier of first instance effectively to control the process” (para. 8; emphasisadded). [55] These formulations indicate a more relaxed approach to the granting of leave, although they do recognize that the underlyingpolicy of fostering avoidance of fragmentation of hearings should be supported.

That said, it is to be noted that the cases from thisjurisdiction cited by the City all dealt with proposed appeals from interlocutory trial decisions rather than administrative bodies. It isarguable that in the case of a statutory appeal from an administrative body, as opposed to a court, a policy of non-interference with theintegrity of the administrative process might call for an even more stringent screening of interlocutory appeals.

Yet rule 35 purports totreat interlocutory appeals from lower courts in the same manner as interlocutory appeals from administrative tribunals. [56] I do not find it helpful to describe the demarcation line between allowing interlocutory appeals and refusing them as one simplyof exceptionality or by stating that the threshold for exceptionality is a “high one”. That does not help in determining appropriateness ofan appeal in specific cases.

It is better to approach each proposed appeal on a case-by-case basis and to address the question whetherentertaining an appeal before the process in the lower court or tribunal has been completed will seriously undermine the underlyingpolicy of fostering the integrity of the trial or administrative process and to balance that consideration against the presence of othercountervailing considerations that, in the words of K.M. “warrant their hearing.” [57] In that regard, paragraphs (a), (

b) and (

c) of rule 35(1) set out the countervailing considerations. Further, rule 35(2) implicitlyindicates a further consideration. It provides that if a notice of appeal is struck for any of the reasons listed in rule 35 it does not prejudicethe right of the appellant to include the same issues in an appeal when the matter has been completed. Some issues, however, will berendered moot by the end of the hearing if they are not appealed and dealt with immediately as an interlocutory appeal.

Where, therefore,the opportunity to have an issue dealt with will no longer be available to be included in an appeal at the end of the matter, that is aconsideration favouring dealing with the issue on an interlocutory appeal without waiting until the whole matter is concluded in the courtor tribunal below. [58] In this case, the City has not suggested any prejudice will accrue to it if this appeal is heard before the compensation assessmentmatter is completed in the hearing before the Board.

In fact, the Lynches argue – and I agree – that delay in dealing with the issue isactually a benefit to the City because, assuming the Lynches were to be successful in all their claims, the City will continue to have thebenefit of the land in the interim without having to fully pay for its value and associated costs. Thus, consideration of paragraph (

a) ofrule 35(1) does not justify refusing to hear the appeal. [59] As to paragraph 35(1)(b), the possibility of “delay, inconvenience or an inefficient use of judicial resources” is theoreticallyengaged whenever an interlocutory appeal is sought. In this case, however, an appeal on whether the Lynches were entitled to interiminterest and costs will not effectively contribute to delay in resolution of the main compensation issue because delay was already broughtabout by the City’s suggestion that a stated case be first brought in the Supreme Court and the Board’s agreeing with that idea.

That issuehas now been dealt with, the ruling having been released only several weeks ago. Furthermore, that decision has been appealed, delayingfurther the possibility of achieving a final compensation award until the basis upon which compensation is to be calculated is finallydetermined. Declining to hear the current appeal would therefore have had no effect on the continuation of the compensation hearingbefore the Board. [60] Rule 35(1)(

c) requires the party opposing the appeal to supply any other “good reason” for delaying the appeal. The only reasonadvanced by the City involves reliance on the general “prematurity” principle discussed earlier. That in effect is the same sort ofargument that falls within rule 35(1)(b). Its force in the current situation is considerably muted. [61] In fact in this case there is “good reason” for hearing the appeal. The Lynches cast their arguments in terms of access to justice.They have had their property effectively taken from them since 2013.

They have had to fight a number of other battles that have beencostly, time-consuming and psychologically debilitating: a leave application to the Supreme Court of Canada; engaging and paying forvaluation assessments, lengthy negotiations with the City over valuation; preliminary objections raised by the City in front of the Boardand a stated case to the Newfoundland and Labrador Supreme Court. They claim – and the City has not challenged this – that the cost ofpursuing their rights is now seriously affecting their ability to fund the remainder of the process.

[62] Furthermore, this is not akin to, for example, a ruling on a matter of evidence, which could be appealed at the end of the processas a ground for upsetting an unfavourable award on the merits as contemplated under rule 35(2). If interim relief is not granted, the issueof whether an interim award should have been made would be moot by the end of the hearing and could not be a ground of appealagainst an unfavourable award at the end of the day. [63] In the circumstances, therefore, there are good reasons for allowing the appeal to proceed at this time.

I would dismiss the City’sapplication that the Court exercise its discretion to decline to hear the appeal. [64] I will now deal with the merits of the appeal. Standard of Appellate Review [65] Both parties made submissions on the basis that the standard of review was governed by the principles outlined in Dunsmuir v.New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 and the cases interpreting it. The Dunsmuir approach, as developed in the subsequentcase law, mandated a review of a tribunal’s decision for most cases, including questions of

interpretation of the tribunal’s home statute,according to a reasonableness standard. [66] The Lynches submitted that the decision of the Board not to make an interim award of interest, costs and expenses, therebyrequiring them to bear substantial costs until final determination notwithstanding the principles in expropriation law that the claimantshould be made whole and should not be deterred, by expense, from seeking full compensation, was unreasonable. [67] The City maintained, in contrast, that the decision to defer payment of such expenses, being merely a procedural ruling thatdisclosed no error in principle or failure to consider appropriate factors, was demonstrably reasonable.

The City further says that even ifthe Board’s decision was in some manner defective, this Court should not give direction to the Board on how it should decide the issuesbut should remit the matter to it for further determination at an appropriate time. [68] Since argument in this appeal was heard, the Supreme Court of Canada has revised and restated the law with respect to theframework for determining the standard of review of tribunal decision-making in a trilogy of cases: Canada (Minister of Citizenship andImmigration) v. Vavilov, 2019 SCC 65; Bell Canada v.

Canada (Attorney General), 2019 SCC 66; and Canada Post Corp. v. CanadianUnion of Postal Workers, 2019 SCC 67, collectively referred to as the Vavilov trilogy. [69] Neither party sought leave to make further submissions to the Court on the impact, if any, that the Vavilov trilogy had on theapproach to be taken with respect to resolution of the present appeal.

Nevertheless, this Court must apply the law on the standard ofjudicial review as it has been currently explained in the trilogy. [70] Vavilov enunciated a presumption of reasonableness as the applicable standard in all cases and stated that reviewing courtsshould derogate from this presumption only where required by a clear indication of legislative intent or by the rule of law (para. 10). [71] In this case, however, the matter is brought before this Court by way of a statutory appeal rather than an application for judicialreview.

Although in some cases the Dunsmuir analysis had been applied to statutory appeals, that situation was changed by Vavilov. TheSupreme Court declared that one of the circumstances where the presumption of a reasonableness standard could be rebutted is “wherethe legislature has provided a statutory appeal mechanism from an administrative decision to a court, thereby signaling the legislature’sintent that appellate standards apply when a court reviews the decision” (para. 17).

The Court explained: [36] … Where a legislature has provided that parties may appeal from an administrative decision to a court, either as of right or withleave, it has subjected the administrative regime to appellate oversight and indicated that it expects the court to scrutinize suchadministrative decisions on an appellate basis. This expressed intention necessarily rebuts the blanket presumption of reasonablenessreview, which is premised on giving effect to a legislature’s intention to leave certain issues with a body other than a court.

This intentionshould be given effect … [72] The Court also made it clear that, absent a statutory direction to the contrary, on a statutory appeal, ordinary standards ofappellate review, as would apply when reviewing a decision of a court, are to be applied: [37] … a court hearing such an appeal is to apply appellate standards of review to the decision. This means that the applicable standard isto be determined with reference to the nature of the question and to this Court’s jurisprudence on appellate standards of review.

Where,for example, a court is hearing an appeal from an administrative decision, it would, in considering questions of law, including questionsof statutory

interpretation and those concerning the scope of a decision maker’s authority, apply the standards of correctness inaccordance with Housen v. Nikolaisen, 2002 SCC 33 , 2002 SCC33, [2002] 2 S.C.R. 235 (S.C.C.), at para 8. Where the scope ofthe statutory appeal includes questions of fact, the appellate standard of review for those questions in palpable and overriding error (as itis for questions of mixed fact and law where the legal principle is not readily extricable): see Housen, at paras. 10, 19 and 26-37.

Ofcourse, should a legislature intend that a different standard of review apply in a statutory appeal, it is always free to make that intentionknown by prescribing the applicable standard through statute. [73] For statutory appeals, unless the statutory appeal provision stipulates otherwise, this would seem to mean, amongst other things,that: - questions of law involving

interpretation of the tribunal’s home statute will now be reviewed on a correctness standard; - as in the case of appeals from a lower court, the appellate court now has a limited power to receive additional evidence on the appeal; - the appellate court may interfere and set aside the tribunal decision whenever material error is found whereas, under the formerDunsmuir reasonableness standard, error was not the touchstone for interference provided the decision, viewed holistically andcontextually, could nevertheless be said to be reasonable; and

- if material error is found, the appellate court may, at its option but always in accordance with principle, proceed to decide the merits of the case in accordance with proper legal rules or remit the case to the tribunal for further adjudication in accordance with those rules, whereas on judicial review the power of the court was generally restricted to setting aside the decision and remitting it to the tribunal. [ 74 ] Each of the foregoing matters arguably represents an expansion of the role of the appellate court when it is acting by way of statutory appeal as opposed to by way of judicial review.

Such results are, however, subject to the statutory provision conferring the right of appeal. It would be possible, for example, for the statute, properly construed, to confer even more extensive powers by stipulating that the appeal is to be conducted as a hearing de novo . On the other hand, the statute could, by its terms, restrict the scope or standard of appellate review more narrowly than would normally follow on a Housen approach. [ 75 ] In this case, the statutory appeal right is extensive. It is not limited, as was the case in Bell Canada , to questions of law or jurisdiction.

It expressly covers challenges based on questions of law, fact and the quantum of compensation. There is nothing in its language to indicate a more limited appellate standard than that flowing from the Housen approach.

By the same token, the fact that appeals are allowed on questions of fact and quantum does not in itself indicate that the process is to involve a de novo hearing; more express language would be necessary to achieve that result. [ 76 ] I am satisfied, therefore, that the appellate standard of review contemplated by Housen applies . [ 77 ] Since the case is to be treated in the same manner as if it were from a lower court, this Court, assuming it finds error, would have the authority to make the appropriate decision that would have flowed had the errors below not occurred.

Principles Governing the Making of Interim Orders [ 78 ] Having determined that the Board had jurisdiction to make interim orders (a matter which, as has been noted, is not under appeal), it was incumbent on the Board to identify or formulate a standard or set of principles upon which the exercise of discretion to make an interim order should be exercised. The decision whether to make an interim order could not be exercised on whim or convenience unrelated to the merits of the interim application.

If the possibility of an interim order is to be meaningful, the Board has to address the relevant considerations at the time the application is made, not simply push the matter off to the end (unless for proper considerations that is the appropriate thing to do).

Having invoked the jurisdiction to ask for an interim order, which the Board acknowledged it had, the Lynches were entitled to have the Board make a decision as to whether interim orders should be granted based on proper principle. [ 79 ] The Board did not say much about the matters that were appropriate to be considered when deciding whether to make an interim order.

What principles it was purporting to apply have to be gleaned from the Board’s stated general concerns about making interim orders as well as the reasons given for making an interim order for compensation while denying the various other interim orders claimed. [ 80 ] In explaining its ruling that it had jurisdiction to make interim orders, the Board made the following comments about their availability: While the Board has authority to make an interim award the Board believes that such an award would not be appropriate in most cases given the potential issues associated with making an award before the conclusion of a matter.

In particular, an interim award raises the potential for overpayment as the amount of interim payment may be higher than is ultimately determined after all the evidence and submissions have been heard. The subsequent recovery of this overpayment may be difficult for the expropriating authority and pose hardship on the landowner. In addition an interim award of costs or interest would require the Board to exercise its discretion before the matter was concluded and therefore may not allow consideration of all of the factors that may be relevant to this determination.

Given the potential concerns, the Board believes that an interim award of compensation, costs or interest should be limited to cases where the Board is satisfied that such an award is appropriate to provide for full compensation and, further, that there is enough information on the record to determine the amount of an interim award which would be appropriate in the circumstances. [ 81 ] In this passage, it can be seen that the Board was concerned about: - the possibility of overpayment by virtue of an interim order if the final order was less; - the difficulty of recovery of any such overpayment; - other applicable factors may be identified at the conclusion of the hearing that were not apparent at the time the interim order that might have affected the result; - ensuring that there was enough information on the record to be able to make an appropriate interim award; and - ensuring full compensation for the landowner. [ 82 ] These are generic considerations that are present, to a greater or lesser degree, in every decision to make an interim award.

Whenever an interim award is made, there will always be a risk of potential overpayment if either a final order is denied or the Board concludes after hearing all of the evidence that only a smaller amount is justified. That possibility is inherent in the nature of an interim order. The question that has to be addressed in each case, however, is what degree of risk is tolerable in the circumstances. Tolerability might well be affected by the degree to which the claimant might be unable to repay any overpayment.

If ability to repay is not an issue or has not been raised or established by the party resisting payment, then the risk should generally be worth running. [ 83 ] Clearly, as the Board noted, other factors might present themselves for consideration following an interim order and these could affect the view that the Board ultimately might take of the matter. Again, however, that risk is potentially present in all cases. The real issue in a given case is what is the likelihood of something being raised out of the blue later on that could have a significant effect on the result?

A lot will depend on the assessment of the strength of the claimant’s case at the time the interim order is sought and the Board’s

assessment of the likelihood of something new arising. It would have been helpful if the Board had addressed the test for assessing thestrength of the claimant’s case. [84] The Board also mentioned the importance of having a sufficient record before it to justify making an interim award. In one sense,that proposition is self-evident. The party seeking an interim award must provide the requisite information and submissions to justify theappropriateness of making such an award; if that is not done, the Board is justified in refusing it.

It is important, however, to recognizethat the requirement of a sufficient record does not mean that the Board can arbitrarily insist on having a complete record, in the sense ofthe type of record that would be available at the conclusion of the final hearing. The very notion of an interim award is that it is capableof being made before the full hearing has been completed. The Board is therefore not justified in postponing the matter solely becausethere might be more relevant information available later on.

The Board must attempt to decide on the appropriateness of making aninterim order by relating the information available to an appropriate test or set of principles for when an interim award would bejustified. [85] Finally, the Board also alluded to the need for “full compensation” but stated that an interim award should be limited tocircumstances where it was “appropriate to provide for full compensation.” The problem with this tautologous position is that the notionof full compensation underpins the whole expropriation compensation process and the Board did not identify when it would or would notbe “appropriate” to give effect to this principle in a given case when considering an interim order. [86] The Lynches in this case stressed the statements in earlier expropriation cases that the legislation should be interpreted in such away that the landowner who has been deprived of his or her land should not be “victimized in loss because of the accident that his land[is] required for public purposes” (Smith v.

Alliance Pipeline Ltd., 2011 SCC 7, [2011] 1 S.C.R. 160 per Fish J. at para. 55) which meansthat the landowner should be made economically whole by being provided “full compensation” (Alliance Pipeline, at para. 56, citingDell Holding Ltd. v. Toronto Area Transit Operating Authority, (SCC), [1997] 1 S.C.R. 32 at paras. 20-22). The casesrecognize that the legislation should be interpreted in favour of the landowner with this view in mind because of the vulnerable positionthat the landowner is in (Alliance Pipeline, at para. 55, citing Diggen-Hibben Ltd. v.

R., (SCC), [1949] S.C.R. 712 at715). [87] The Lynches also relied on K.J.Boyd’s text, Expropriation in Canada: A Practitioner’s Guide (Aurora, Ontario: Canada LawBook Inc., 1988), quoting the Ontario Law Reform Commission, to the effect that “the system of assessing compensation must beweighted to some extent in favour of the individual” and that there is an obligation of the state “to repair the injury caused to particularindividuals for the public good, and to minimize the loss, inconvenience and disturbance to the life of its citizens to as great an extent aspossible.” (at 143-144; emphasis added). [88] At one point, the Board asserted that an interim order was a mechanism that could be employed “to ensure full compensation to alandowner whose property has been taken for public purposes”.

I agree with this idea that the use of interim orders can further theunderlying “full compensation” principle of the legislation.

The question here, however, is whether the Board, when addressing thespecific interim orders that were requested in this case, kept the full compensation principle in mind and regarded the possibility ofmaking an interim order as a mechanism to vindicate that principle. [89] Further, when dealing with the request for an order for interim compensation (which the Board granted to the extent that the Cityconsented), the Board commented: The Board is satisfied that the evidence on the record in this matter supports a value for the expropriated land of at least $105,000.

TheBoard believes that, in ensuring full compensation to the Lynches, there should be an interim award. (Emphasis added.) [90] The Board appears to have stopped applying the full compensation principle at granting interim compensation for the value ofthe land taken and did not address it in the context of the other interim claims that were being made.

Counsel for the Lynches pointed outthat case law in other jurisdictions generally recognizes that there is a prima facie right to indemnification for the necessary expenses ofpursuing one’s statutory rights to compensation (subject to a standard of reasonableness) and costs and expenses are regarded as part ofthe expropriation award (Alliance Pipeline, paras. 66, 67). On that theory, costs and expenses are part of the “full compensation” towhich the landowner is entitled.

Even though that would seem, absent other considerations, to call for similar treatment with respect tointerim awards for the value of the land taken as well as the associated costs and expenses, the Board, by its conclusions, effectivelydrew a distinction between interim compensation for value on the one hand and interim awards for costs, expenses and interest on theother. [91] It follows from these general principles, say the Lynches, that the expropriation process should be applied, with respect tomaking interim orders, in a manner that: - expropriated property owners should be sufficiently funded in order to make an expropriation claim and to present their case at anexpropriation hearing; and - that the claim-assertion funding and all or a portion of the expropriation compensation should, other things being equal, be paid assoon as possible. [92] I agree with these submissions to the extent that they can be regarded as overarching general principles that should animate theexercise of discretion as to whether an interim order ought to be made in a given case, subject always, of course, to the statutoryconstraints, if any, imposed by the legislation. [93] In my view, for reasons to be explained later, the Board, while paying lip service to the full-compensation principle, did notproperly apply it and the other overarching principles when considering the specific interim order requests in this case. [94] The Board also made reference at two places in its reasons to the length of time it had taken to deal with the compensation claims

in this case. Both occurred during the Board’s reasoning as to why, in principle, the Board had jurisdiction to make interim orders. The first – already quoted earlier – involved the assertion that: … an interim award may be appropriate where there has been undue delay during which the claimant has neither the land nor the value of the land for an extended period.

During this time the landowner cannot enjoy the benefits of ownership of the property, financial or otherwise, and may well be forced to incur and fund substantial costs to further the claim . … (Emphasis added.) [ 95 ] This comment highlights the significance of delay to the financial cost of being deprived of a remedy and provides a reason for making an interim order to ameliorate those detrimental consequences. [ 96 ] The second reference to delay emphasizes the significance of the delay in this case: The circumstances of this case are somewhat unusual both in terms of the issues and the course of the proceedings, which have been ongoing for a number of years. … It is now over five years since the deemed date of the constructive expropriation and it is likely to be sometime before the stated case is completed and the matter is finally resolved.

The City has had the benefit of the expropriated land for a number of years and the Lynches have not. [ 97 ] To the extent that the Board was signaling by these comments that the case was unusual or special because of delay and that such matters should be factored into the decision as to whether to make an interim order, it was right to do so. The Lynches described the issues at stake in this case as involving considerations of access to justice. The length of time and the cost involved have, they say, the prospect of disabling them from pursuing their claims with the vigour they feel they deserve.

To the extent that this is so, it works against the underlying principles of full compensation on a timely basis. It is not clear, however, that the Board ever gave any further consideration to this issue when considering the appropriateness of the individual interim orders that were being requested. [ 98 ] In

summary, therefore, it can be said that the Board identified the following as considerations impacting on whether an interim award should be made: the risk of overpayment and the inability to recover any such amounts; the potential for other information not known at the time of the interim order application affecting the final result; the desirability of vindicating the principle of full compensation; and the impact of delay on the full compensation principle. [ 99 ] Implicit in those concerns are the following considerations: - the strength of the claimant’s ultimate claims; - the need to level the playing field to account for a claimant’s vulnerability in dealing with the resources of the state; and - the desirability of promoting access to justice by ensuring that inability to access compensation on a timely basis does not prevent or disable the claimant from presenting his or her case to completion. [ 100 ] Although the Board identified important issues that are potentially raised by the making of interim orders, it did not suggest an analytical framework for applying appropriate considerations in specific cases.

Without such a framework, the considerations mentioned by the Board merely constitute general background explaining the sorts of problems that interim orders present in a generic sense. More is needed to assist in deciding specific cases. [ 101 ] It is appropriate, therefore, for this Court to attempt to formulate an approach or framework within which determinations of when to make interim orders can be made.

Unfortunately, the cases cited to the Court by the parties involving the making of interim orders in an expropriation context do not contain any discussion of the specific considerations that were applicable in those cases. Other areas of law, such as family law, however, have addressed the issues albeit in the legal context presented in those areas.

Drawing on the matters discussed by the Board and on approaches taken in other legal contexts, I would suggest the following framework. [ 102 ] Influencing each step in the analysis is the requirement that the specific considerations that follow should be interpreted and applied bearing in mind that the goals include (

i) full compensation on a timely basis and (ii) treating the claimant on a level playing field bearing in mind that a disparity of resources between the expropriating authority and the claimant increases the vulnerability to the process. With those matters in mind, I would apply in this case the following considerations: 1. Consider the strength of the claimant’s claims . An interim order may be appropriate where the claimant has a reasonable prospect of success on the issue under consideration, at least for the period covered by the proposed interim award.

If so, concerns about overpayment and ability to repay any overpayment should be less of a concern. While the “reasonable prospect of success” standard that is postulated here is lower than a balance of probabilities standard (since that is the standard to be applied at the end of the hearing when all the evidence and argument is considered), it is a standard that requires that there be some reliable substance to the claim. That is the baseline. The more the claimant’s claims have strength beyond that baseline, the greater will be the justification for an interim award. 2.

Consider whether there are any circumstances likely (ie. not specultative) to arise later that may materially affect entitlement. If there is some issue of substance that appears from the positions and submissions of the parties (a potential challenge to the Board’s jurisdiction, for example) that is unable to be developed at the time of the interim application and should be more conveniently be dealt with at the end of the hearing, and which, if successful, would eliminate the claimant’s entitlement, that is a factor that would weigh against making an interim order. 3.

Consider whether there are any circumstances surrounding the claim that take the case out of the normal. For example, s. 32(1) stipulates, subject to specific ministerial extension, that the Board shall make its award “within 60 days after it has been seized with the matter.” This indicates, as pointed out by the City, that the compensation process is intended to be expeditious. If the nature of the issues or the procedural circumstances affecting the claim result, or have the reasonable prospect of resulting, in substantial delay before resolution, that is a factor favouring making an interim order.

It is the fact of a delay or potential delay, not necessarily who bears fault

for the delay, that is the key consideration. 4. Consider whether there are any special circumstances affecting the claimant that should be accounted for in order to level the playing field between the claimant and the expropriating authority so as to ensure that the claimant is not deterred from proceeding with the claim for reasons extraneous to the merits of the claim.

For example, if the claimant faces financial need to be able to pursue the claim, particularly in respect of large outlays to engage valuators and pay for legal assistance because of the complexity of the issues or the length of time necessary to resolve the matter, an interim order may be required to vindicate access to justice concerns or the principle of full compensation on a timely basis.

In fact, the nature of the claim, particularly its potential length to resolution and the number of issues to be resolved, may in itself lead to a rebuttable presumption that the claimant will need interim assistance, leaving it to the expropriating authority to show that assistance is not required in the circumstances. 5.

If, following application of the foregoing considerations, serious concern remains that potential weaknesses in the claimant’s case may result in a final determination of a significantly lesser amount of entitlement than reasonably claimed, consider whether only a portion of the amount reasonably claimed as an interim order should be awarded. Doing so may go some way toward reducing any lingering concern about the possibly of overpayment by way of an interim award.

It should be noted, however, that possible overpayment itself should not be the concern; it is the potential for non-repayment of any such overpayment that is the real issue. It would be up to the expropriating authority to raise this issue and lead evidence in support of the existence of a potential of non-repayment. Errors in the Approach of the Board [ 103 ] As I have noted previously, although the Board was not oblivious to at least some of the considerations that could make an interim award inappropriate, its discussion of them took place as a generic discussion without any attempt to (

i) develop a framework for application in particular cases; or (ii) to apply the generic considerations to the facts presented. [ 104 ] Having determined it had jurisdiction to make an interim order, it had to apply proper considerations to determining whether interim orders were appropriate in the particular circumstances of the case. It was not sufficient simply to decide to push consideration of the interest, costs and expenses issues off to the end, as a convenient means of not dealing with them immediately, without addressing the applicable factors that might have made such interim awards appropriate.

The Lynches were entitled to a substantive decision on the appropriateness of an interim award of interest, costs and expenses, applying the proper considerations. [ 105 ] For example, the Board did acknowledge that an interim award “may be appropriate … to ensure full compensation” and cited as an example circumstances where: …there had been an undue delay during which the claimant has neither the land nor the value of the land for an extended period.

During this time the landowner cannot enjoy the benefits of the ownership of the property, financial or otherwise, and may well be forced to incur and fund substantial costs to further the claim . (Emphasis added.) [ 106 ] Yet, although the Board considered there had been considerable delay in this case and that the principle of ensuring full compensation should be kept in mind, and although the Lynches had asserted that the delay was affecting their ability to proceed with their claim, the Board did not consider, when addressing the claims for interim interest, costs and expenses, why delay and incurring substantial costs to further the claim, did not justify an interim award.

What was missing was an attempt to relate proper considerations to the specifics of the Lynches’ case. [ 107 ] Because of these errors, I would set aside the decisions not to award interest, costs and expenses and conduct what I believe should have been an appropriate analysis. Applying the principles in Matchim v. BGI Atlantic Inc. , 2010 NLCA 9 , 294 Nfld. & P.E.I.R. 46 , I would not remit the case to the Board. The record is sufficient to make the determinations necessary. To remit it would only delay this case further. [ 108 ] Each of the heads of claim advanced by the Lynches will now be addressed.

Interest [ 109 ] Regarding the claim for an interim award of interest on the $105,000 that the Board was prepared to award, the Board denied it, stating simply: In terms of the Lynches’ claim for interest, the Board believes that the exercise of discretion in this regard should be made in the context of the circumstances at the conclusion of the matter. As such, the Board will not award interest on an interim basis at this stage of the proceeding. [ 110 ] The only reason given was that interest decisions should be made at the conclusion of the hearing in the context of the circumstances known at that time.

That is not a proper justification, without more, for refusing to deal with the claim for an interim award. The Board did not address the strength of the Lynches’ case to determine whether they had a reasonable prospect of recovering interest. While there could never be any certainty on this issue until the end of the case, that is not the applicable test. Further, the Board did not identify any “circumstances” that might have been relevant to denial

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