NATIVE PEOPLES |
Lands |
St. Martin v. Canada (Ministry of Indian Affairs and Northern Development)
A-465-98
2001 FCA 205, Isaac J.A.
28/6/01
19 pp.
Appeal from Trial Division decision ([1998] F.C.J. No. 1032 (QL)) determining annual rents from April 1, 1991 to March 31, 1998, payable by 61 lessees of individual lots on Whitefish River Indian Reserve No. 4 in Ontario--Appellant disputing application of 40% discount factor against fair market value of land as determined by Trial Judge--Contending 30% discount appropriate factor to apply--Lots subject to separate but virtually identical leases entered into between appellant-lessor, respondent-lessees--Lease having term of 21 years effective April 1, 1977 with possibility of renewal for each of three separate, additional successive periods of 7 years--In December 1990, respondents notified by letter rent would increase effective April 1, 1991--Trial Judge not agreeing with application by appellant's expert of 30% discount factor to fee simple fair market value of lots--Instead, applied 40% discount factor--Appellant invoking recent Supreme Court of Canada decision in Musqueam Indian Band v. Glass, [2000] 2 S.C.R. 633--Like lease in Musqueam, present lease makes reference only to "value of the land", not to value of land under lease--Principle that, absent contractual terms to contrary, lease conditions not to be factored into determination of fair market value of demised land constant in Canadian jurisprudence, consistently applied by F.C.T.D.--Assessment which Trial Judge accepted done in contravention of approach in law accepted by Courts in Canada for several decades, recently restated by Supreme Court in Musqueam--In accepting, acting upon report of appellant's appraiser, Trial Judge erred in law--New trial required to determine fair market rents in accordance with terms of lease, principle laid down by Supreme Court in Musqueam that conditions in lease irrelevant to fair market value of demised lands--Whether Trial Judge erred in substituting 40% discount factor for 30% factor which appellant's expert applied--Issue rendered moot by application of Musqueam--Trial Judge's interpretation of change in methodology adopted by appellant's expert either misconstrued nature of change or regarded it as impermissible on basis tax advantage could not be considered at all in determining discount factor--Court in agreement with conclusion of Trial Judge on issue of applicable interest rate--Appeal allowed in part.