Judgments

Decision Information

Decision Content

T-1243-82
C.J.R.T. Developments Ltd. (Plaintiff)
v.
The Queen (Defendant)
Trial Division, Marceau J.—Vancouver, Novem- ber 16, 17 and 18, 1982; Ottawa, January 10, 1983.
Aeronautics — Action for compensation under s. 6(10) of the Act for devaluation of property caused by enactment of Comox Airport Zoning Regulations — Question of fact whether, and to what extent, if any, plaintiff suffered injurious affection — Subsidiary issues of date of enactment of Regula tions and effect of subsequent amendments to Regulations — Aeronautics Act, R.S.C. 1970, c. A-3, s. 6(1)(j),(10) — Comox Airport Zoning Regulations, SOR/80-803 (as am. by SOR/81-719).
Expropriation — Injurious affection — Comox Airport Zoning Regulations — Whether and to what extent value of plaintiff s lands decreased — Question as to date Regulations enacted — Property subject to different zoning and possible uses — Land values increasing daily during relevant period — Compensation of $211,800 awarded — Comox Airport Zoning Regulations, SOR/80-803 (as am. by SOR/81-719).
Statutes — Statutory interpretation — Comox Airport Zoning Regulations approved by Governor in Council, regis tered by Clerk of Privy Council and deposited in Land Titles Office on three different dates -- Date of enactment of Regu lations being "expiration of day immediately before" day Regulation registered by Clerk of Privy Council — S. 6(2) of Interpretation Act providing regulations normally construed as coming into force upon expiration of day immediately before day regulation registered pursuant to s. 6 of Statutory Instru ments Act (i.e., by Clerk of Privy Council) — Reference in s. 6(8) of Aeronautics Act to s. 9 Expropriation Act strictly reference to manner of carrying out registration, there being no clear statutory provision that date of deposit to be construed as date of enactment — Awareness of regulations by interested parties not condition precedent to coming into force of regula tions — Right to compensation for devaluation of property not affected by subsequent amendments to Regulations — Rights cannot vary in relation to moment when actually enforced — Aeronautics Act, R.S.C. 1970, c. A-3, s. 6(8) — Comox Airport Zoning Regulations, SOR/80-803 (as am. by SOR/81- 719) — Expropriation Act, R.S.C. 1970 (1st Supp.), c. 16, ss. 4, 13, 43 — Expropriation Act, R.S.C. 1952, c. 106, s. 9(1) Statutory Instruments Act, S.C. 1970-71-72, c. 38, ss. 6, 9, 28 — Interpretation Act, R.S.C. 1970, c. I-23, s. 6(2) (as am. by R.S.C. 1970 (2nd Supp.), c. 29, s. 1) — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 35.
Action under subsection 6(10) of the Aeronautics Act for injurious affection of property resulting from the operation of zoning regulations in relation to the Comox Airport. On Octo- ber 16, 1980, the Comox Airport Zoning Regulations were approved by the Governor in Council. The Regulations were registered by the Clerk of the Privy Council on October 20, 1980, and were deposited in the Land Titles Office on Decem- ber 15, 1980. The basic issue is whether, and to what extent, if any, the lands of the plaintiff have decreased in value as a result of the Regulations. Incidental to this issue is the question as to which of the three dates referred to above is the exact date of enactment of the Regulations. The answer is important because the property was subject to different sets of zoning limitations at the different times and accordingly possible uses varied. Also, rapidly escalating land values meant that land values increased daily. The plaintiff submits that the date of enactment is the date when the Regulations were deposited in the Land Titles Office. It contends that the new Regulations had to be deposited in the Land Titles Office as a formal requisite of the Act, which was imposed by reference to the Expropriation Act. Subsection 6(8) of the Aeronautics Act provides that "A plan and description of the lands affected by a zoning regulation shall be signed and deposited in the same manner as a plan and description is by subsection 9(1) of the Expropriation Act ... and a copy of the regulation shall be deposited with the plan and description." The second incidental issue is what effect subsequent amendments to the Regulations have. In February 1981, the Minister acknowledged the possi bility of an error in the original Regulations, and in September the Regulations were amended and filed in the Land Titles Office. The President of the plaintiff company admitted that the amendments alleviated the restrictions of the Regulations to such an extent that the new limitations were apparently no greater than those imposed by the town's general planning by-law applicable to the land.
Held, the plaintiff is entitled to compensation in the amount of $211,800 for decreased property value. The Comox Airport Zoning Regulations came into effect at "the expiration of the day immediately before" they were registered by the Clerk of the Privy Council, i.e., October 20, 1980. The reference in subsection 6(8) of the Aeronautics Act to subsection 9(1) of the former Expropriation Act is strictly a reference to the manner in which the registration shall be carried out. For the date of deposit in the registrar's office to be taken as the actual date of such instrument, a clear indication of the law would be required, as was apparently the case in the former Expropria tion Act and is the case under the present Expropriation Act. The rule is found in subsection 6(2) of the Interpretation Act, as amended by section 28 of the Statutory Instruments Act, that a regulation normally shall be construed as coming into force upon the expiration of the day immediately before the day the regulation was registered by the Clerk of the Privy Council pursuant to section 6 of the Statutory Instruments Act. No exception is inferred from the sole enactment of a requirement such as that found in subsection 6(8) of the Aeronautics Act.
Nor is actual awareness by all interested individuals a condition precedent to the coming into force of a regulation. The right of compensation as a result of the enactment of a zoning regula tion is not affected by a subsequent amendment. The subsection 6(10) right to recover the decrease in property values stemming from regulations was obviously meant to exist and be enforce able as soon as the regulations were enacted and nowhere is it said that such a right can be affected by future regulations or subsequent amendments. Once such a right is made enforce able, it cannot vary in relation to the moment it is actually enforced. A right of reimbursement for the Crown or a limita tion of damages can only be imposed by statute.
CASE JUDICIALLY CONSIDERED
REFERRED TO:
Roberts and Bagwell v. The Queen (1957), 6 D.L.R. (2d) 305 (C.A.).
COUNSEL:
Douglas H. Gray for plaintiff. George C. Carruthers for defendant.
SOLICITORS:
Van Cuylenborg & Gray, Victoria, for plaintiff.
Deputy Attorney General of Canada for defendant.
The following are the reasons for judgment rendered in English by
MARCEAU J.: Under the Aeronautics Act (R.S.C. 1970, c. A-3, as amended), the Minister of National Defence is authorized, subject to the approval of the Governor in Council, to make zoning regulations applicable to lands adjacent to or in the vicinity of airports under his jurisdiction. The purpose of such regulations is, of course, to restrict, regulate or prohibit, for purposes relating to navigation of aircraft, the use and location of buildings, structures and objects situated on those lands. The empowering provision is subsection 6(1) which reads in part as follows:
•
6. (1) Subject to the approval of the Governor in Council, the Minister may make regulations ... with respect to:
(j) the height, use and location of buildings, structures and objects, including objects of natural growth, situated on lands
adjacent to or in the vicinity of airports, for purposes relating to navigation of aircraft and use and operation of airports, and including, for such purposes, regulations restricting, regulating or prohibiting the doing of anything or the suffer ing of anything to be done on any such lands, or the construction or use of any such building, structure or object;
It is obvious that as a result of the enactment of airport zoning regulations under the Aeronautics Act, privately-owned lands could be injuriously affected; Parliament fully appreciated the situa tion and inserted in its legislation the following provision:
6. ...
(10) Every person whose property is injuriously affected by the operation of a zoning regulation is entitled to recover from lier Majesty, as compensation, the amount, if any, by which the property was decreased in value by the enactment of the regulation, minus an amount equal to any increase in the value of the property that occurred after the claimant became the owner thereof and is attributable to the airport.
This is an action brought under subsection 6(10) of the Aeronautics Act (hereinafter "the Act"). In its statement of claim, the plaintiff simply alleged that the enactment, in 1980, under the Aeronau tics Act, of a set of zoning regulations in relation to the Comox Airport, a Defence Airport on Van- couver Island, B.C., had had the effect of injuri- ously affecting lands of which it was the owner and it claimed the compensation it was entitled to pursuant to subsection 6(10) of the Act. In his defence filed on behalf of the defendant, the Deputy Attorney General of Canada acknowl edged that regulations in relation to the Comox Airport had come into force in 1980 and that lands belonging to the plaintiff had been affected there by, but he disputed that those lands had, as a result, decreased in value to any significant extent or, in any case, to the extent asserted. It is on the sole basis of these laconic pleadings that the action came on for trial.
The parties readily agree that their dispute turns on one basis question, that is to say, whether, and to what extent if any, the lands of the plaintiff have decreased in value as a result of the enact ment of the Comox Airport Zoning Regulations
[SOR/80-803 (as am. by SOR/81-719)]. They also agree that the question can be dealt with properly only by proceeding to an appraisal and a compari son of the value of the lands before and after the coming into effect of the said Regulations. As it presents itself, the controversy will certainly not appear to be unfamiliar: the case is of the same type as any expropriation case where the amount of compensation is the point in dispute. It was no doubt noticed, however, that the question to be answered, as formulated above, leaves one impor tant point in the dark: what date is to be taken as relevant. Obviously, this is a precision which has to be given before the problem of appraisal can be properly examined. It will be seen, when the facts of the case are known, that this precision requires the preliminary determination of two incidental legal difficulties.
The salient facts of the case
The parties have set forth with care and clarity the facts on which they were agreed. I see no better way to expose the factual context of the case than to reproduce in its entirety this agreed state ment of facts prepared by both counsel and read into the record at the opening of the hearing.
1. Prior to 1980 there existed no Zoning Regulations under the Aeronautics Act in relation to Comox Airport on Vancouver Island, B.C.
2. In the years immediately before that Comox Township was experiencing growth in population and needed additional resi dential land development to accommodate this growth.
3. The planning authorities in the Town of Comox and the Regional District of Comox-Strathcona, proposed to deal with growth demand by expanding the boundaries of Comox Town ship and zoning for residential development certain land then included within the Agricultural Land Reserve Plan of the Regional District including the land described as the North Eastern Quarter and the South Eastern Quarter of Section Seventy-one (71) Comox District (in this statement described as "the Property").
4. On the 18th of March, 1980, the Provincial Agricultural Land Commission on the application of the then owner of the Property made with the support of the Town and the Regional District approved an Order removing the Property from the Agricultural Land Reserve Plan of the Regional District.
5. At about that time the Town of Comox approached the Provincial Ministry of Municipal Affairs requesting the exten sion of the boundaries of the Town to include inter alla the Property.
6. In the early months of 1980 the two (2) Engineers and one (1) Consultant Town Planner who later incorporated the Plain tiff company decided to pool their experience, expertise and resources in a common development project.
7. They became aware of the Property and the development proposals of the Municipal authorities for it, and on the 7th of May they made an offer to purchase it for the purpose of carrying out the required residential development. Their offer was accepted.
8. They then in consultation with the appropriate authorities set about the survey, engineering and design work required to obtain sub-division and other approvals for development and on the 22nd of September, 1980, were informed by the Town that no application was needed for zoning since the Town was preparing an overall zoning boundary extension.
9. On the 29th of September, 1980, the three (3) individuals incorporated the Plaintiff company.
10. On the 15th of October, 1980, the Plaintiff obtained execution of the Deed of Transfer of the Property from the registered owner.
11. On the 16th of October, 1980, by Order of the Lieutenant- Governor in Council for British Columbia, Supplementary Letters Patent issued including the Property within the bound aries of the Town of Comox and at about the same time the Plaintiff received preliminary approval from the Town to its proposed subdivision of the Property.
12. On the 16th of October, 1980, the Comox Airport Zoning Regulations made by the Minister of National Defence pursu ant to section 6(1) of the Aeronautics Act, R.S.C. 1970, Chap. A-3, were approved by the Governor General in Council.
13. On the 30th of October, 1980, the Deed of Transfer of the Property to the Plaintiff was registered in the Land Titles Office, Victoria.
14. On the 5th of November, 1980, the Comox Zoning By-Law Amendment - By-Law 604 (in this statement called "the By-Law") No. 19, 1980, was given first and second reading. This by-law included the Property under zoning classification Residential One (RI).
15. On the 10th of December, 1980, the By-law was given third reading by the Town of Comox.
16. On the 15th of December, 1980, the Comox Airport Zoning Regulations made under the Aeronautics Act (in this statement called "the Regulations") were deposited in the Land Titles Office, Victoria.
17. On the 17th of December, 1980, the By-Law was adopted by the Town of Comox.
18. At about the 23rd of January, 1981, the Town of Comox first received a copy of the Regulations and immediately noti fied the Plaintiff that its project might be affected.
19. The Plaintiff immediately ran a topographical survey on the effect of the Regulations and having determined that the Regulations as published:
(a) Showed a glide path which in some places was subterranean;
(b) included existing school and other important buildings within the glide path;
(c) effectively sterilized approximately 7.5 hectares of the Property;
made representations to the Department of National Defence in Ottawa concerning the said Regulations.
20. On the 10th of February, 1981, the Regulations were published in newspapers on Vancouver Island.
21. On the 23rd of February, 1981, the Minister of National Defence publicly acknowledged that, in his opinion, an "error" had been made in the Regulations and indicated his Depart ment's intention to correct it.
22. Endorsement of the application of the Regulations to the Property did not appear on the Plaintiff's title until after the 4th of March, 1981.
23. On the 16th of September, 1981, the Comox Airport Zoning Regulations, amendment, made by the Minister of National Defence was approved by the Governor General in Council and published as SOR/8l-719, September 21, 1981, 1981 Canada Gazette Part II, p-2774.
24. On the 21st of September, 1981, the Comox Airport Zoning Regulations, amendment, were filed in the Land Titles Office, Victoria.
The establishment of the exact dates to which the question refers
Before being ready to examine the question raised by the pleadings, which is, as seen above, whether, and to what extent if any, the lands of the plaintiff had decreased in value as a result of the enactment of the Regulations, it is necessary to establish the exact date or dates at which those Regulations were enacted. And to do so, as I indicated, two incidental legal difficulties must be disposed of.
1 The first of these two incidental difficulties
can readily be identified. It was explained in para graphs 12 and 16 of the agreed statement of facts that the Comox Airport Zoning Regulations made by the Minister of National Defence were approved by the Governor General in Council on October 16, 1980 (P.C. 1980-2772), and were deposited in the Land Titles Office, in the City of Victoria, on December 15, 1980. A third date must be added: the Regulations as approved by the Governor in Council were registered by the Clerk of the Privy Council on October 20, 1980. Which of these three dates is that at which must be estimated the effect of the new zoning regulations? The significance of the answer is certain: the lands,
as noted in other paragraphs of the parties' state ment of facts, were subject to different sets of zoning limitations in the period of time covered, and their status with respect to their possible use changed from one date to the other; besides, according to all the evidence, 1980 was a year during which the value of lands in British Columbia increased at such an extremely rapid rate that the interest of a landowner susceptible of being affected by a zoning regulation was, in terms of money, increasing from day to day.
The plaintiff, in support of the argument in favour of the latest date, contends that the new Regulations had to be deposited in the Land Titles Office as a formal requisite of the Act, a requisite which is imposed by reference to the Expropria tion Act [R.S.C. 1970 (1st Supp.), c. 16] and that, in fact, prior to that date neither the town's authorities nor anyone associated with the com pany was even aware of their existence.
It is of course quite true that the deposit in the Land Titles Office was a requirement of the Act set out in subsection 6(8) in the following terms: "A plan and description of the lands affected by a zoning regulation shall be signed and deposited in the same manner as a plan and description is by subsection 9(1) of the Expropriation Act required to be signed and deposited, and a copy of the regulation shall be deposited with the plan and description." However, I do not see why it can be said that the coming into operation of the Regula tions was meant to be delayed until fulfilment of this requirement. It seems to me that for the date of deposit of an instrument in the office of the Registrar of deeds to be taken as the actual date of such instrument or the date of its coming into effect, a clear indication of the law would be required. I note that this was apparently the case in the former Expropriation Act (R.S.C. 1952, c. 106) where subsection 9(1) clearly provided that the date of the deposit of a plan and description of the land to be expropriated in the office of the registrar of deeds for the county in which the land was situated was to be the date upon which the expropriated interest was vested in Her Majesty; and this is also the case in the present Expropria tion Act where, pursuant to section 13, the date of registration in the office of the local registrar of deeds of a notice of confirmation of the intention
to expropriate is that upon which the expropriated interest is absolutely vested in the Crown. But in fact neither the former nor the actual Expropria tion Acts had to deal with the registration of an act or an order of the Governor in Council. The reference in subsection 6(8) of the Aeronautics Act to subsection 9(1) of the former Expropriation Act—a reference which has to be construed as a reference to section 4 of the present Expropriation Act'—is, to me, strictly a reference to the manner in which the registration shall be carried out. Before the coming into force of the Statutory Instruments Act [S.C. 1970-71-72, c. 38] on Janu- ary 1, 1972 (19-20 Eliz. II, c. 38), subsection 6(2) of the Interpretation Act [R.S.C. 1970, c. I-23] established as a basic rule that: "Every enactment that is not expressed to come into force on a particular day shall be construed as coming into force upon the expiration of the day immediately before the day the enactment was enacted", and even the Regulations Act (R.S.C. 1970, c. R-5 [rep. by S.C. 1970-71-72, c. 38, ss. 33, 34]), in providing for the publication in the Canada Gazette of all statutory regulations, made no exception to the rule. 2 In 1971, Parliament, in its wisdom, thought it advisable to change the rule in order to better enforce its requirement that all
' Section 43 of the Expropriation Act provides in part as follows:
43. Where in any Act in force upon the coming into force of this Act other than an Act mentioned in Column I of Schedule I1 to this Act, there is a reference to the Expro priation Act, except as regards any expropriation, abandon ment or revesting in respect of which the provisions of this Act do not apply the reference shall be construed as a reference to this Act and
(a) a reference to section 9 of the Expropriation Act shall be construed as a reference to section 4 of this Act;
(c) a reference to a plan or description shall be construed as a reference to a notice of intention; ...
2 Except that there could be no conviction under an unpub lished regulation. Section 6 reads as follows:
6. (1) Every regulation shall be published in the Canada Gazette within twenty-three days after copies thereof in both official languages are transmitted to the Clerk of the Privy Council pursuant to subsection 3(1).
(2) A regulation-making authority may by order extend the time for publication of a regulation and the order shall be published with the regulation.
(Continued on next page)
statutory instruments be transmitted to and regis tered by the Clerk of the Privy Council: it deter mined in the Statutory Instruments Act that henceforth a statutory instrument would not nor mally come into force until registered by the Clerk of the Privy Council (section 9) and it substituted a new subsection (2) to section 6 of the Interpreta tion Act to confirm that the normal date of the coming into force of a regulation would be that of its registration pursuant to the Statutory Instru ments Act (section 28*). 3 In my view, the rule as amended in 1971 remains a fundamental rule and I am unable to subscribe to the view that an exception thereto could simply be inferred from the sole enactment of a requirement such as that here in question inserted in a particular statute.
(Continued from previous page)
(3) No regulation is invalid by reason only that it was not published in the Canada Gazette, but no person shall be convicted for an offence consisting of a contravention of any regulation that at the time of the alleged contravention was not published in the Canada Gazette in both official lan guages unless
(a) the regulation was, pursuant to section 9, exempted from the operation of subsection (1), or the regulation expressly provides that it shall operate according to its terms prior to publication in the Canada Gazette, and
(b) it is proved that at the date of the alleged contraven tion reasonable steps had been taken for the purpose of bringing the purport of the regulation to the notice of the public, or the persons likely to be affected by it, or of the person charged.
* Section 28 of the Statutory Instruments Act was repealed by Schedule A to R.S.C. 1970 (2nd Supp.) and subsection 6(2) of the Interpretation Act was amended by R.S.C. 1970 (2nd Supp.), c. 29, s. 1—Ed.
3 These sections 9 and 28 of the Statutory Instruments Act read as follows:
9. (1) No regulation shall come into force on a day earlier than the day on which it is registered unless
(a) it expressly states that it comes into force on a day earlier than that day and is registered within seven days after it is made, or
(b) it is a regulation of a class that, pursuant to paragraph (b) of section 27, is exempted from the application of subsection (1) of section 5,
in which case it shall come into force, except as otherwise authorized or provided by or under the Act pursuant to
(Continued on next page)
It is also true that the town's authorities and the three individuals behind the plaintiff company had not become aware of the new Regulations until long after their enactment, in fact not before January 1981. But obviously, a system that would make actual awareness by all interested individu als a condition precedent to the coming into force of a regulation is unthinkable.
In my view, the Comox Airport Zoning Regula tions became effective and operative at "the expi ration of the day immediately before" they were registered pursuant to section 6 of the Statutory Instruments Act, i.e., on October 20, 1980. Their effect on the use and value of the land was immediate; the burden they were intended to create existed at once. Since the statutory right to compensation created by subsection 6(10) of the Act in favour of a landowner is for the diminution in value of his land at the moment it became burdened by the operation of the regulation, Octo- ber 20, 1980 is, in this case, the relevant date. (On this point, see the remarks of Nolan J. in Roberts and Bagwell v. The Queen (1957), 6 D.L.R. (2d) 305 (C.A.) at page 314.)
(Continued from previous page)
which it is made, on the day on which it is made or on such later day as may be stated in the regulation.
(2) Where a regulation is expressed to come into force on a day earlier than the day on which it is registered, the regulation-making authority shall advise the Clerk of the Privy Council in writing of the reasons why it is not practical for the regulation to come into force on the day on which it is registered.
28. (1) Subsection (2) of section 6 of the Interpretation Act is repealed and the following substituted therefor:
"(2) Every enactment that is not expressed to come into force on a particular day shall be construed as coming into force
(a) in case of an Act, upon the expiration of the day immediately before the day the Act was enacted;
(b) in the case of a regulation of a class that is not exempted from the application of subsection (1) of section 5 of the Statutory Instruments Act, upon the expiration of the day immediately before the day the regulation was registered pursuant to section 6 of that Act; and
(c) in the case of a regulation of a class that is exempted from the application of subsection (1) of section 5 of the Statutory Instruments Act, upon the expiration of the day immediately before the day the regulation was made."
2—The second issue required to be determined in order to clarify the question posed by the action is not readily apparent on the reading of the agreed statement of facts, but it will be revealed by the addition of a very simple further informa tion to that contained in paragraphs 21, 23 and 24 thereof. It was stated in those paragraphs that, in February 1981, the Minister acknowledged the possibility of an error in the original Regulations, that, indeed, on the 16th of September 1981, the Comox Airport Zoning Regulations were amend ed, and the amended Regulations were, five days later, regularly filed in the Land Titles Office. The information to be added is the following one.
Counsel for the defendant was given leave 4 to read into the record some extracts of an examina tion for discovery of the President of the plaintiff company. On being examined on behalf of the company, the President had been led to admit that, in his opinion, the September 1981 amendments had had the effect of alleviating the restrictions of the original Regulations to such an extent that the new limitations were apparently no greater than those imposed by the town's general planning by-law applicable to the land (questions and answers 1 to 3 and 144 to 155). The witness was called upon to clarify before the Court the answers he had given in the course of his examination for discovery. He repeated that a topographical survey of the land would have been necessary to appreci ate with some accuracy the effects of the amend ments, since the elevations of every parcel of the land, in relation to the geodetic elevation of the runways and the line of the "glide path", had to be established, and such survey had never been done. He also expanded on his previous testimony to the effect that the original Regulations had immedi ately forced his company to put off its initial subdivision plan and to devise, as quickly as possi ble (in order to take full advantage of the short supply of lots at the time) and on the basis of completely renewed studies, a new plan which, in September, had already been accepted by the municipal authorities. Still, he did not retract what he had said previously as to the "apparent" effects of the amendments.
4 Leave was required because the evidence had then already been declared closed.
The problem, of course, is now evident. The right purported to be exercised by this action is a statutory right confined within precise limits. It is clear on reading subsection 6(10) of the Act that the loss for which a landowner is given a right of compensation is strictly the loss resulting from the decrease in value of his land, no other. If the September 1981 amendments are to be considered in determining the compensation due to the plain tiff, the result achieved by these renewed Regula tions is naturally of prime importance and the statement of the President of the plaintiff com pany, now part of the evidence, may have serious consequences.
I should say, first, that I have some doubt as to the probative value of this statement, a statement which was far from being clear, was seriously qualified, and at most was intended to be a mere expression of opinion, and I am not prepared to accept that it can be taken as an admission on the part of the plaintiff that the September amend ments had lifted the restrictions of the original Regulations. If it was the contention of the defend ant, after having conceded that the Regulations enacted in October had "effectively sterilized approximately 7.5 hectares of the Property" (para- graph 19 of the agreed statement of facts), that the September amendments had completely elimi nated the original limitations, it does not appear to me evident that a formal allegation to that effect had not to be made in the defence and a more positive proof had not to be adduced at trial. But I do not think that the point need be explored further, since I have come to the conclusion that the effects of the September 1981 amendments are not to be taken into account at all.
This conclusion is suggested to me by a simple analysis of the legal situation that presents itself here. Subsection 6(10) of the Act gives the land owner a right to recover as compensation the amount by which his property has been decreased in value by the enactment of some airport zoning regulations. The right created by this provision is obviously meant to exist and be enforceable as soon as the regulations referred to are enacted and
nowhere is it said that such a right can be affected by future regulations or subsequent amendments. I do not see how a right of that nature once created and made enforceable could vary in relation to the moment it is actually recognized or enforced, which would be the case if the compensation were to be established on differing sets of facts depend ing on when it is acted upon or when the judgment sought for its enforcement is rendered. Of course, it is not unthinkable that the Crown be accorded a right to be reimbursed for all or part of the compensation paid following the enactment of some airport zoning regulations, if amendments eliminating the restrictions initially imposed were later adopted; but such a right of reimbursement would have to be created by statute. It could also be quite reasonable to limit to the actual damages suffered the compensation payable to a landowner when the zoning regulations affecting his land are amended within a certain period of time, the situa tion not being completely dissimilar to that dealt with in the Expropriation Act when an expropriat ing authority abandons its declared intention to expropriate; but special provisions to that effect do not exist yet. The very facts of this case call to mind the remote but real possibility of a zoning regulation being corrected very shortly after being enacted and one has difficulty in thinking that the landowner could still have a right of compensation. In such an extreme case, the landowner may have difficulty in proving that its land has actually suffered a decrease in value, particularly if the initial limitations were clearly the result of an error that could easily be detected, but otherwise, as the law now stands, I think the right of compen sation as a result of the enactment of a zoning regulation is not affected by a subsequent amend ment, be it adopted ten years afterwards or only eleven months, as in this case.
The question to be answered now stands clari fied. The reference point of time is October 20, 1980, when the Comox Airport Zoning Regula-
tions came into effect "sterilizing" (in the sense that the word is used in the statement of facts) 7.5 hectares of the property of the plaintiff, and the question is whether, on that date, the property of the plaintiff suffered a decrease in value, and, if it did, to what extent.
[Editor's note: This case was selected for publica tion for its discussion of the "two incidental legal difficulties" which had to be resolved prior to calculating the decrease in land value resulting from enactment of the Comox Airport Zoning Regulations. The Editor has chosen to omit several pages of the reasons for judgment which contain a review of and comments upon the expert evidence given by two appraisers.]
Conclusion
The question raised by the pleadings was wheth er, and if so to what extent, the property of the plaintiff had decreased in value as a result of the enactment of the Comox Airport Zoning Regula tions. The answer is that the property suffered a decrease in value that can be estimated at $211,- 800. The plaintiff was entitled to claim compensa tion for that amount under subsection 6(10) of the Aeronautics Act.
There is no statutory provision for the payment of interest on a sum allowed as compensation for injurious affection under subsection 6(10) of the Aeronautics Act, and section 35 of the Federal Court Act [R.S.C. 1970 (2nd Supp.), c. 10] applies. 5 It will therefore be simply declared that the plaintiff is entitled to recover from the defend ant the sum of $211,800 with costs to be taxed.
5 35. In adjudicating upon any claim against the Crown, the Court shall not allow interest on any sum of money that the Court considers to be due to the claimant, in the absence of any contract stipulating for payment of such interest or of a statute providing in such a case for the payment of interest by the Crown.
 You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.