Court of Appeal

NOVA SCOTIA COURT OF APPEAL

Citation: Higgins v. Nova Scotia (Attorney General),

2013 NSCA 155

Date: 20131220

Docket: CA 417846

Registry: Halifax

Between:

Forrest C. Higgins Jr.

Appellant

v.

The Attorney General of Nova Scotia

Representing Her Majesty the Queen in Right

of the Province of Nova Scotia and D.D.V. Gold

Limited, a body corporate

and the Mining Association of Nova Scotia and

Nova Scotia Federation of Agriculture

Respondents

Judge:                            The Honourable Justice M. Jill Hamilton

Appeal Heard:               November 22, 2013, in Halifax, Nova Scotia

          Subject:                          Costs; Challenging the validity of a vesting order issued pursuant to s. 70 of the Mineral Resources Act, S.N.S. 1990, c. 18.

Summary:                       The judge at first instance found that the landlord’s challenge of the validity of the expropriation of his land was distinct from asserting a claim for compensation.  Accordingly, he found that the costs provisions of the Expropriation Act, R.S.N.S. 1989, c. 156 did not apply and ordered the landowner to pay party and party costs to D.D.V. Gold Limited, the deemed expropriating authority, and the Attorney General of Nova Scotia.  The landowner appealed.

Issue:                              Did the judge err in ordering the landowner to pay party and party costs?

Result:                            Leave to appeal granted, but costs appeal dismissed.  The entitlement to and assessment of costs in land expropriation cases are governed by statute.  The Expropriation Act, R.S.N.S. 1989, c. 156, provides a landlord is entitled to be paid reasonable costs incurred for the purpose of asserting a claim for compensation.  There is no provision for the payment of costs to an expropriated landowner who challenges the expropriation itself.  The judge did not err in holding that there is a distinction between challenging the validity of the expropriation itself and asserting a claim for compensation, so that the costs provisions of the Expropriation Act do not apply.  Nor did he err in awarding the costs he did under the Civil Procedure Rules.