Judgments

Decision Information

Decision Content

A-76-76
Philip Karam and Norma Karam (Appellants) (Plaintiffs)
v.
National Capital Commission (Respondent) (Defendant)
Court of Appeal, Jackett C.J., Le Dain J. and Kerr D.J.—Ottawa, June 13, 14 and 15, 1977.
Expropriation — Valuation — Appeal from Trial Judge's determination — Effect of nearby land assembly not used to
gauge value Direct highway access to proposed satellite city overlooked — "Highest and best use" determined but value accepted by Court based on a different "highest and best use" — Evidence re valuation reports in affidavits — Federal Court Rule 482.
The expropriated owner appealed from the judgment of the Trial Division on the grounds that the Trial Judge erred in finding that the value of the expropriated property could not be gauged by amounts paid by a public corporation for lands in a defined land assembly project and slated for development as a satellite city. Also, the Judge overlooked the effect of direct highway access to this proposed city. Both the finding and the oversight were challenged. Further, the Judge found that the "highest and best use" of the land was as an estate lot housing development, and yet accepted a valuation submitted by an expert who considered the property's "highest and best use" to be acquisition for speculation. The logic of this course was disputed for this method could result in a lower valuation.
Held, the appeal is dismissed. There is no basis for interfer ing with the Judge's conclusion about the effects of the land assembly project, for it was publicly known that the subject lands were not to be included. These lands, therefore, would be affected in a peripheral manner only. The peripheral effect of the highway on market values outside the proposed city is so vague and remote as not to materially affect the Judge's decision. The phrase "highest and best use" applies where the property to be valued has two uses and the evidence shows, depending upon the use for which it is appraised, two different values for it. There is no evidentiary basis for application of the so-called "highest and best use" rule in this case. The expert's affidavit should contain sufficiently detailed information con cerning the expert's reasoning and the party should not be allowed to give verbal testimony without a supplementary affidavit.
APPEAL.
COUNSEL:
Hyman Soloway, Q.C., and James L. Shields for appellants.
Eileen Mitchell Thomas, Q.C., and M. Senzi- let for respondent.
SOLICITORS:
Soloway, Wright, Houston, Greenberg, O'Grady & Morin, Ottawa, for appellants.
Legal Adviser, National Capital Commission, Ottawa, for respondent.
The following are the reasons for judgment delivered orally in English by
JACKETT C.J.: This is an appeal by a former owner from a judgment of the Trial Division in respect of the value placed on property expropriat ed under the Expropriation Act, R.S.C. 1970 (1st Supp.), c. 16.
After giving the best consideration that I can to the very able argument of counsel for the appel lants, I have not been persuaded that, on the evidence before the learned Trial Judge, he was clearly wrong in not concluding, on a balance of probability, that the expropriated property had a value at the time of the expropriation that was higher than the amount thereof as determined by him.
With reference to the finding of the learned Trial Judge that the value of the expropriated property could not be "gauged" by amounts paid by the Ontario Housing Corporation for properties acquired in a defined adjoining area for a satellite city to be built some 20 years in the future, I can find no basis for interfering with his conclusion. It having been made known, by public announce ment, some 18 or 19 months before the expropria tion, that the purchasing operation in question was limited to an area that did not include the expro priated property, it was, in my view, open to the learned Trial Judge to find on the evidence that the knowledge of such purchasing operation would only affect the market in so far as the expropriated property was concerned in the peripheral manner found by him. Moreover, I can see no difference between the impact of such Ontario Housing Cor-
poration purchases on the market at the time of the expropriation for the expropriated property whether such sales were made before the date of the announcement or were made after the date of the announcement; from the date of the announce ment forward, it was known in the market that the Ontario Housing Corporation was not seeking to purchase property outside the area designated for the projected satellite city, and the time as of which the market had to be assessed was 18 or 19 months after that date.
With reference to the fact that the learned Trial Judge
(a) found that the highest and best use for the expropriated property at the time of the expro priation was for an estate lot housing develop ment, and
(b) then proceeded to use a valuation by an expert whose view was that the highest and best use was acquisition for speculative purposes as a basis for building up his ultimate valuation,
I am not persuaded that this method was logically wrong on the evidence that had been put before him; in any event, as it seems to me, one cannot conclude on that evidence that adopting this method resulted in a valuation lower than that that would have resulted from an approach more directly related to what the learned Trial Judge had found to be the highest and best use of the expropriated property.
The significant fact in this connection is that knowledge of the "comparable" sales on which the experts based their opinions in this case appears to have been, without any significant exception, obtained from copies of conveyances or agree ments with no accompanying information as to the surrounding circumstances or the purposes for which the properties were acquired. That being so, it is impossible to say that the values established were for agricultural, subdivision or speculative purposes. It follows that it is impossible to say that the value that the learned Trial Judge used as a
base was not for an estate lot subdivision purpose or, in any event, was less than value for such purpose.'
Other criticisms were made by counsel of the learned Trial Judge's reasoning. Apart from one error of fact on which the appellants and respond ent agree, I have not been persuaded that the appellants have done more than underline their disagreement with the learned Trial Judge's over all appraisal of the evidence or the weight that he has given to certain facts or opinions. With refer ence to his apparent oversight as to the direct means of communication between the expropriated property and the satellite city projected site by way of an overpass over Highway 417, this causes me concern, of course, but its importance in the learned Trial Judge's reasoning—that is the importance of the failure by defendant experts to allow for the peripheral effect of the projected satellite city on market values outside the proposed area for such proposed city—is so vague and so remote that I have concluded that it would not have affected the result even if the learned Trial Judge had not been guilty of this oversight in his consideration of what the market would have pro duced for the land at the time of the expropriation.
For the above reasons, I am of opinion that the appeal should be dismissed with costs.
I wish to add that a perusal of some of the affidavits of experts filed in this case leads me to believe that Rule 482 is being followed by some counsel, if at all, in the letter rather than the
' As it seems to me there is a tendency to overwork the phrase "highest and best use" and to distort its significance. It applies, as I understand it, where property to be valued has two possible uses and the evidence shows, depending upon the use for which it is appraised, two different values for it. For example, the evidence may show that a farm on the edge of a growing city has an agricultural value of $500 per acre but, by reason of advancing urbanization, has acquired a value as a housing development site of $1,000 per acre. In such a case (leaving aside questions of improvements and disturbance), the Court must place on the land its value for its "highest and best use". In this case, as I understand the evidence, the expert opinions are all based on evidence as to comparable sales of unimproved or raw land with no information as to the purpose of acquisition. There does not, therefore, seem to be an eviden- tiary basis for application of the so-called "highest and best use" rule.
spirit. 2 Indeed, in my view, the result is much less satisfactory than in the old days of voluntary exchange of valuation reports. I strongly suggest that, when an expert's affidavit does not contain a sufficiently detailed statement of the expert's rea soning so that the Court could, in the absence of attack, adopt that reasoning as its own and decide the question that is the subject of his evidence on the basis of it, the party should not be allowed to supplement it by verbal testimony until a supple mentary affidavit is filed containing such reason ing and the other side and the Court have had an opportunity to consider it. (If that involves adjournments, costs thrown away should be assessed against the party at fault.)
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LE DAIN J. concurred.
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KERR D.J. concurred.
2 Rule 482 reads in part:
Rule 482. (1) No evidence in chief of an expert witness shall be received at the trial (unless the Court otherwise orders in a particular case) in respect of any issue unless
(b) a full statement of the proposed evidence in chief of the witness has been set out in an affidavit, the original of which has been filed and a copy of which has been served on the other party or parties not less than 10 days before the commencement of trial, and
(2) Subject to compliance with paragraph (1), evidence in chief of an expert witness may be tendered at the trial by
(a) the reading of the whole of the affidavit referred to in paragraph (1), or such part thereof as the party decides to use at the trial, into evidence by the witness (unless the Court, with the consent of all parties, permits it to be taken as read), and
(b) if the party so elects, verbal testimony by the witness
(i) explaining or demonstrating what is in the affidavit or the part thereof that has been so put into evidence, as the case may be, and
(ii) otherwise, by special leave of the Court subject to such terms if any as seem just.
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