Court of Appeal

NOVA SCOTIA COURT OF APPEAL

Citation:  Yarmouth (Town) v. Gateway Importers and Exporters Ltd.,

2011 NSCA 17

Date:   20110208

Docket: CA 334765

Registry: Halifax

Between:

Town of Yarmouth

Appellant

v.

Gateway Importers and Exporters Limited,

The Attorney General of Nova Scotia and

The Nova Scotia Utility and Review Board

Respondents

Judge:                   The Honourable Justice Peter M. S. Bryson

Appeal Heard:      January 26, 2011

Subject:                Administrative Law – Boards and Tribunals – Judicial Review – Expert Evidence – Expropriation – Value of Land – Injurious Affection – Damages

Summary:             The Town of Yarmouth appealed an award by the Utility and Review Board for injurious affection.  The Town objected that the Board had wrongfully considered “development potential” rather than “market value”.  The Town also claimed that the Board erred in accepting expert evidence that did not comply with the Expropriation Act, R.S.N.S. 1989, c. 156, and which contained unproven assumptions.  The Town also alleged that the Board erred in deciding that a lease of part of the lands could be terminated early.

Issues:                   Did the Board err:

1. By including “development potential” in its assessment of “market value”?

2. By determining that a tenant’s lease could be terminated early?

3. By relying on an appraisal with assumptions not proven by other evidence?

4. By relying on expert evidence that did not comply with the Expropriation Act?

Result:                  Appeal dismissed.  The property was prime commercial space whose highest and best use was as a strip mall.  In this case, market value required that this potential for development be taken into account.  There was evidence that a tenant’s lease over part of the property could be terminated early, allowing a potential buyer to develop the property immediately.  The assumptions in the expert report to which the Town objected were of a generic nature relating to such things as retail rents, management expenses, and construction costs in the local market.  The Town’s own expert did not seriously challenge the accuracy of these assumptions.  The Expropriation Act did not require an owner’s expert report to comply with “appraisal report” as defined by the Act.  In any event, technical differences between the form of the Town’s expert report and that of the owner were not material to the difference in their opinions.  It was for the Board to determine what evidence it would accept.  All of the foregoing were reviewable on the standard of reasonableness.  Both the Board’s reasoning and conclusions were reasonable.