SHAWN SOMERVILLE MILNE Appellant v. HIS MAJESTY THE KING, 2023 FCA 138

Date: 20230613 Docket: A-44-22 Citation: 2023 FCA 138 CORAM: PELLETIER J.A. RIVOALEN J.A. ROUSSEL J.A. BETWEEN: SHAWN SOMERVILLE MILNE Appellant and HIS MAJESTY THE KING Respondent Heard by online video conference hosted by the Registry on November 22, 2022. Judgment delivered at Ottawa, Ontario, on June 13, 2023. REASONS FOR JUDGMENT BY: PELLETIER J.A. CONCURRED IN BY: RIVOALEN J.A. ROUSSEL J.A. Date: 20230613 Docket: A-44-22 Citation: 2023 FCA 138 CORAM: PELLETIER J.A. RIVOALEN J.A. ROUSSEL J.A.

BETWEEN: SHAWN SOMERVILLE MILNE Appellant and HIS MAJESTY THE KING Respondent REASONS FOR JUDGMENT PELLETIER J.A [ 1 ] This is an appeal from the Federal Court’s decision on costs reported as 2022 FC 63 , following the dismissal of Mr. Milne’s claim for compensation for disturbance and injurious affection as a result of the expropriation of a part of his land to permit the expansion of an existing railway corridor. The Federal Court found that Mr.

Milne had not proved that the expansion of the corridor had a perceptible increase on the noise level at his residence. [ 2 ] In reasons released concurrently with these, this Court, having found that the increased noise from the expansion of the railway corridor had a severe impact at Mr. Milne’s residence, allowed his appeal from the dismissal of his claim for relief and returned the matter to the Federal Court for a redetermination of his claim.

[ 3 ] The Federal Court’s decision on costs turned, in part, on the failure of Mr. Milne’s claim for relief and, in part, on the Court’s view that Mr. Milne’s claim for relief was unreasonable. [ 4 ] Given that Mr. Milne’s claim for relief is being returned to the Federal Court for redetermination, the Federal Court’s view of Mr. Milne’s claim and its reasonableness may change following the redetermination. This may affect the Court’s view of Mr. Milne’s entitlement to costs under the special regime set out in the Expropriation Act , R.S.C. 1985, c.

E-21 . [ 5 ] As a result, it would be inappropriate to deal with the matter of the costs of the expropriation proceedings before they are finalized. Therefore, this appeal will be allowed and the Federal Court’s costs award will be set aside, subject to a fresh determination as to costs being made at the conclusion of the Federal Court’s redetermination of the amount of compensation to which Mr. Milne is entitled is completed. [ 6 ] For the same reasons given in the appeal on Mr. Milne’s entitlement to compensation, I would award Mr. Milne his costs to be assessed at the high end of Column IV. "J.D.

Denis Pelletier" J.A. “I agree. Marianne Rivoalen J.A.” “I agree. Sylvie E. Roussel J.A.” FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-44-22 STYLE OF CAUSE: SHAWN SOMERVILLE MILNE v. HIS MAJESTY THE KING PLACE OF HEARING: by online video conference DATE OF HEARING: November 22, 2022 REASONS FOR JUDGMENT BY: PELLETIER J.A. CONCURRED IN BY: RIVOALEN J.A. ROUSSEL J.A. DATED: june 13, 2023 APPEARANCES : Sean Gosnell Ian Mathany For The Appellant Jacqueline Dais-Visca Wendy Wright For The Respondent

SOLICITORS OF RECORD : M&H LLP Toronto, Ontario For The Appellant Shalene Curtis-Micallef Deputy Attorney General of Canada For The Respondent