30 EXCHEQUER COURT REPORTS. VOL. XX Ÿ HIS MAJESTY THE KING PLAINTIFF ; July 5 AND GEORGE W. BROWN AND JAMES W. BROWN, BOTH OF REGINA, IN DEFENDANTS. THE PROVINCE OF SASKATCHEWAN . AND BY ORDER OF REVIT OR, BETWEEN HIS MAJESTY THE KING PLAINTIFF; AND THE SAID JAMES W. BROWN AND THE NATIONAL TRUST COM- PANY, LIMITED, EXECUTORS OF THE LATE GEORGE W. BROWN, WHO DEFENDANTS. DEPARTED THIS LIFE SINCE THE INSTITUTION OF THE PRESENT SUIT . Expropriation—Leasehold—Damages due to abandonment—Mitigation of damages---Burden of Proof. On the 14th of October, 1918, the Crown expropriated a certain leasehold term of 18 months for the purpose of temporary military barracks in Regina, and offered to pay $1,200 a month, plus taxes, insurance, light and heat for the same. Subsequently, on the 31st of October, 1919, it filed an abandonment of the leasehold in question in the Land Titles office. Held: That the offer of the Crown, $1,200 per month for the time up to date of abandonment was sufficient; but in as" much as by the abandonment the Crown practically took the position of one repudiating a contract, the lessors would also be entitled to damages resulting from the loss of rent from date of cancellation to end of term, either by reason of such repudiation of contract, or under the provisions of sub-sec. 4 of sec. 23 of the Exchequer Court Act. 2. That the burden of proof, in respect of the mitigation of the damages flowing from the abandonment by the Crown in expropriation proceedings, is upon the Crown.
VOL. XX EXCHEQUER COURT REPORTS: INFORMATION by the Attorney General of Canada to have certain leasehold interest in land described expropriated and valued. Mr. F. W . Turnbull, counsel for plaintiff. Mr. G. H. Barr, K.C., and C. for defendants. The facts are stated in the reasons for judgment. AUDETTE, J., now (this 5th July, 1920) delivered ôF °, judgment . This is an Information exhibited by the Attorney General of Canada, whereby a certain leasehold interest in the lands hereinafter described and belong- ing to the defendants were taken and expropriated, by . the Crown, for the purposes of a temporary military barracks, at' Regina, . province of . Saskatchewan, by depositing a; plan and description of such leasehold term in the Land Titles Office for the Assiniboia Land Registration District, in the province of Saskatchewan. This leasehold interest is described as follows: "A leasehold term of ,eighteen months, commencing on the .14th day of October; 1918, ing lands, namely:—Lots numbered five (5) to ten (10) inclusive, in block three hundred and seventy-two (372) in the city of Regina, in the province of katchewan, according to a plan of record in the Land Titles Office for Assiniboia Land Registration District as Old No. 33, as well as of all buildings situate thereon." The Crown, by the Information, offers for said leasehold' interest in the said land and buildings, the sum of $1,200 per month net, paying taxes, insurance, light and heat, and the defendants by their statement of defence claim the sum of $2,500 per month net to ' them, in addition to taxes, insurance, light and heat. ' 31 11! THE gING GEORGE ND JAMES w. BROWN AND • THE KING Johnston, counsel JAM w. THE -AND NATIONAL TRUST' , / COMPANY Lis. GEORGE W. BROWN):* Reasons for Judgment. • of, in and to the follow- Sas- '
32 EXCHEQUER COURT REPORTS. VOL. XX 1920 Now, counsel at bar on behalf of the plaintiff, at the Two opening of the case, filed an undertaking to abandon, Bx wN ND under the provisions of section 23 of the Expropriation JAMES W. AND Act, the expropriation of the leasehold in question in TEE RING this case, and in compliance thereto, such an abandon- JAM ES W . BROWN ment was filed in the Land and Titles Office for the Assiniboia Land Registration on the 31st October, N IONNL TRUST COMPANY, 1919. LTD. (ExEcvtoRs The controversy therefore becomes twofold. First, OP ME LATE GEORGE W. in respect to the fixing of the monthly rent payable by BROWN). the Crown from the date of the expropriation to the Reasons for Judgment. 31st October, 1919, and secondly, the fixing of the compensation for the damages resulting from the abandonment under the provisions of sub-sec. 4 of sec. 23, of the Expropriation Act. In respect of the rent that should be paid for the time that the Crown occupied the premises, a deal of evidence has been adduced on both sides, with the usual conflicting character as is met with in expropriation cases. The evidence on behalf of the owners may be summarized in the following manner: Witness Linton values the property at $300,000, and the monthly rental at $2,800. Witness McCarthy values the property, in the fall of 1918, at $240,000 to $250,000, and contends he should get 8 per cent. net on that amount for rent. He is of opinion that the parties who built the Sherwood block were not justified in building it; it is too expensive a building for that locality, and it was a mistake. Witness Lecky, values the property at $350,000, and says the owners should get 8 per cent. net per month; but that there was no market for that price in October. 1918, and that in October, 1918, the property should command a rent of
VoL. XX EXCHEQUER COURT REPORTS. $2,200 to $2,300 per month. Witness the property at $250,000 in October, 1918, and the THE KING rent at $1,700 per month—with respect to the abandon- ment, the p p l aintiff should P at J e cancellation of the lease, and take care of the, carrying charges. Witness Delai fixes Monthly. - On behalf of the Crown, witness value of the rent at $1,200 net, monthly, in the fall of 1918. Witness Gibson considers that a fair rental m G the fall of 1918 would be $1,000 to $1,200, and values BROWN). the property at $225,000, which at 6 per cent. would a dgment r give $1,350 net. Witness Carmichael, an architect in the employ of the plaintiff as Clerk ,of Works since Jûz~e, 1919, and before •that date assistant for a while, says that he was asked to report on the Sherwood Building in September, 1918. The Government was offering $1,200. Mr. Brown did come down and was asking $1,500. Mr. Mollard Department when defendant Brown was asking $1,500. He stated the Government would pay taxes from the 1st January to the 31st October, 1919. The parties admitted that Mr. in the course of the negotiations, recommended a- rent of $1,475, but that was not accepted by. the Department at Ottawa. However, the most cogent evidence and the most helping evidence in the circumstances is the fact that this property was previously occupied by • the Crown under a lease for a term of four months and eight days, ending on the 30th April, 1918, and this lease, although signed only by the owners of the Sherwood Stores, contained the following provision: "That the lessor will, on the request of the Minister, before the 4597-3 33 ' Darke value 1 _ 9 _ 20 , half the rent since the. JAME6 w. BROWN AND THE KING .the rental . at $2,810 jBR w AND THE NATIONAL McAra places the TRUa COMPANY, (EXECUTORS OB THE LATE E ORGEW. was at the head of the Mollard at one time expira-
34 EXCHEQUER COURT REPORTS. VOL. XX v 19 2 t 0 i on of the term hereby created, grant to His Majesty THEVK ING a lease of the demised premises for the further term of GEORGE W. BROWN AND years from the expiration of the said B'LA XN8 I term at the same rent, and containing the like coven- THE KING V. ants, provisos and condition." The monthly rent JBR WN payable under that lease was the sum of $1,346. The AND THE NATIONAL amount now offered by the Crown is the sum of $1,200 T RUST COMPANY, per month net to the lessors, the Crown payi ng taxes, (EXElCUTORs insurance, light and heat. If it is considered, as THELATE O G r EOR QE W. established b y the evidence 7 that the taxes for the year BROWN.) 1919 amount to the sum of $4,374.65, and the insurance Reasons for Judgment. without the sprinklers being kept in operation at $2,000, these two amounts added together alone represent the sum of $6,374.65, which added to the $14,400 represented by the monthly rent for 12 months at $1,200, that will give a yearly rent of $20,774.65, as compared with $16,152 for 12 months' rent at $1,346, under the lease above referred to. It therefore results that the rent of $1,200 net per month offered by the Crown, is a most fair and reasonable one, under the circumstances. The owners of the Sherwood Building having already during the same year (1918), between the same parties, accepted a rent of $1,346, looking after the carrying charges, with the undertaking to continue the renting at the same price for an unlimited number of years, I therefore, without any hesitation think that the amount offered by the Crown of $1,200 per month net is most reasonable, yielding to the owners of the building placed at a value of $240,000, a net income of 6 per cent. It appears from the evidence that the erection of the building in the locality in question was a financial mistake.
VOL. XX EXCHEQUER COURT REPORTS Moreover, as appears by the affidavit of W. G. Styles, the manager of the company, notwithstanding his numerous and earnest efforts to rent the building 2:0 since the Crown has abandoned, he has been unable to a secure a tenant, as shown by the affidavit filed herein on the 14th day of May, 1920. Coming now to the question of compensation arising under the abandonment, the Crown practically takes C the position of one repudiating a contract and there (Ex fore entitling the lessors to damages resulting from the loss of such rent from the date of cancellation, or under. the provisions of sub-sec. 4 of sec. 23 of the tion Act, which reads,as follows: "The fact of such abandonment or revesting shall be taken into account, in connection with all the other • circumstances of the case, in the amount to be paid to any person claiming compensation, for the land taken." Upon this branch of the case, the evidence is very meagre, if any on the record that could satisfy one to arrive at any just conclusion and ndne in that respéct was adduced on behalf of the Crown. Is not the lessor, under the circumstances, entitled to such damages as would have arisen from the non-performance of the contract at the appointed time, subject, however, to abatement in respect of any circumstances which may have had the effect ' of mitigating the loss? The onus probandi, in respect of mitigation of the damages flowing from the abandonment, is upon the Crown , and not upon the _defendants. Moreover, under sub. sec. (c) of sec. 26, bf the Expropriation Act, the plaintiff is bound by the Information to set forth: 4597-31 35_ 920 1 TEE,, KING °w" A W ND w. B " RO ~ W = N ANA THE xING JAMES W. ND • THEL ANATIONA T RUST OMPANY• LT D . c J Toas O F TIIELATE GEORGEW. BROwN ). Expropria-.R easons . for Judgment. - estimating or assessing o ,
36 EXCHEQUER COURT REPORTS. VOL. XX 1920 "(c) . The sums of money which the Crown is ready TRE KING v. to pay to such persons respectively, in respect of any BROWN AND such estate, interest, charge, lien or encumbrance," JAMES W. BROWN AND and the Crown has made no offer in connection with THE KING T. the abandonment. JAMES W. With respect to the damages resulting from the AND NATIONAL abandonment, the Court at trial was unable to say TRv CoPAysNrY whether the defendants would be able to rent their (F û.1,ORS premises before the expiration of the life of the lease. G THE LATE GEOR(iE W. It could not then compl Y y w ith the provisions of sub- BROWN). sec. 4 of sec. 23 of the Expropriation Act which says Judgmeatf that: "The fact of such abandonment or revesting shall be taken into account, in connection with all the other circumstances of the case, in estimating or assessing the amount to be paid to any person claiming com-penation for the land taken" and give judgment fixing such compensation without proper evidence, without being seized with all the facts and "all the, circumstances of the case." By doing otherwise a most egregious piece of justice would be done. If such damages could be mitigated by circumstances that would happen between the time of the trial and the expiration of the 18 months, they would be taken into consideration before fixing the damages and the Court would be justified in staying its hand. The damages must be fixed once for all ('). Furthermore, there is authority for the proposition that in fixing damages for loss of profits arising out of a breach of contract, events which happened between the date of the commission of the wrong and the time of the trial must be taken into account in estimating the loss for which one is entitled to compensation (2). 'Dominion Coal Co., Limited, v. Dominion Iron and Steel Company, Limited, (1919) A.C. 293. 2 Finlay v. Howard, 58, S.C.R., 516.
VoL XX EXCHEQUER COURT REPORTS' Therefore, before 'proceeding to render _ judgment, I called the parties before me and asked them whether it would not be proper; under the circumstances, fors the Crown to undertake to pay to the defendant the amount of the rent offered by the Information at $1,200 per month net, up. to the 31st October, 1919, the date of the abandonment, and ask the . Court to zv N stay its hand until the expiration of the 18 months when evidence by affidavit or • adduced . showing what has really taken place since .the GE RaE w 31st October, 1919, the defendants, ,in the meantime, showing diligence in their endeavour to rent or use Jud the premises in question. • This course having been accepted and an application having been made, I refrained from giving judgment at the time, allowing the matter to rest until the • expiration of the lease, and proceeding now to render judgment upon all the questions involved herein: I hereby fix the compensation for the rent, up to the 31st October, 1919, at the sum of the . Crown paying the carrying charges of taxes and insurance. With respect to the unexpired portion of the rent and the abandonment,—Counsel for the ' defendants having at bar declared his readiness to accept half of the rent,—the Crown paying the carrying charges,— stating that this course would be satisfactory, I shall therefore direct that judgment be entered accordingly, the defendant 'having in the meantime been paid and accepted the sum of $3,000 in full settlement of all repairs to the building during the time it was occupied . by the Crown. Therefore there will be judgment in favour of the defendants declaring them entitled to recover from the • 37 , 1 9 20 THEV KING w wNE w . Btowr$r THE KING. JâR N" f T CO R M ü PA s N T Y ,• viva voce might be {v SE~CIITOR6 . BROWN). R g ea m eo e ne n f t a . r . . - $1,200 per month,
38 EXCHEQUER COURT REPORTS. VOL. XX 1 v 920 plaintiff the rental of $1,200 a month, together with all THE ING v.. charges mentioned in the Information such as taxes, B OWN insurance and heat, between the 14th October, 1918, J W BR OWN A ND and the 31st October, 1919,—and from the 31st THnüxtxa October, 1919, to the end of the lease the sum of $600 JAMES BR N ' a month together with all cost of taxes and insurance. DT The defendants béing entitled to their full costs, after TRUST COMPANY, taxation thereof. LTD . (EXECUTORS or THS LATE ~o a~ w. Solicitor for plaintiff: F. W. Turnbull. BROWN). Solicitors for defendants: Barr & Stewart. Reasons for Judgment
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.