A-267-74
Lloyd Thomas Britton and Margaret Sarah Brit-
ton (Plaintiffs) (Appellants)
v.
The Queen (Defendant) (Respondent)
Court of Appeal, Thurlow and Ryan JJ., and
MacKay D.J.—Toronto, February 17; Ottawa,
February 19, 1975.
Practice — Expropriation — Compensation — Trial Judge
refusing motion for particulars and to strike part of statement
of defence—Making order not sought by either party—Wheth-
er proper exercise of power of Court—Expropriation Act,
R.S.C. 1970, c. 16 (1st Supp.), s. 14(3), Federal Court Rules
415(3) and 473(1).
In an expropriation action, appellants appealed from an
order of the Trial Judge (1) refusing to grant an order for
particulars relating to allocation of moneys paid and requiring
Crown to set out portion for the residence, (2) refusing to strike
out portion of defence showing purchase price paid ten years
earlier by appellants, (3) requiring each party to file certain
particulars in a "memorandum of contentions" and a "memo-
randum as to value".
Held, allowing the appeal, setting aside the order and dis
missing the appellants' motion for particulars and the motion to
strike. As to (1), there is nothing in the Expropriation Act or in
the Federal Court Rules or any principle of practice requiring
the particularization of an offer in the Crown's pleading.
Appellants have shown no reason for requiring such particulars;
the facts respecting the residential use of the property were
known and such a demand, even if necessary, was premature.
As to (2), the prior purchase price was not immaterial and
would not be prejudicial. As to (3), neither party applied for
the order nor is it an order contemplated under Rule 415(3). At
a later stage, such an order could be made on consent under
Rule 473(1). At this stage there was neither consent nor was
there anything in the record to justify such an order.
APPEAL.
COUNSEL:
M. Appel for appellants.
H. Erlichman for respondent.
SOLICITORS:
Chappell, Bushell & Stewart, Toronto, for
appellants.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
delivered orally in English by
THURLOW J.: This appeal is from an order of
the Trial Division made in an action brought by
the appellants for compensation in respect of the
expropriation of lands at Pickering, Ontario. In the
statement of claim the appellants described the
expropriated property, consisting of two lots, one
owned by the first-named appellant, and the other
by both appellants jointly, and certain advantages
which the property allegedly had. They also
described, in general terms, the offer and payment
of certain amounts by the Crown as compensation
for the property, and went on to allege that these
amounts were inadequate and to claim a larger
single amount.
The defence, inter alia, described in greater
detail the offers of compensation made to and
accepted by the appellants, without prejudice to
their right to claim additional compensation.
Before reply the appellants demanded and there
upon applied for an Order for:
particulars of paragraphs 7(i) and 9(e) of the statement of
defence as to the allocation of the monies therein pleaded to
have been paid to the plaintiffs as between market value,
disturbance, special economic advantage and sufficient pay
ment to enable the plaintiffs to relocate their premises on
premises reasonably equivalent to the premises expropriated or
any other allocation; and for an order requiring the defendant
to give particulars of paragraph 5 of the statement of defence
setting out what portion of the expropriated premises the
defendant is pleading that it admits to being a residence.
The appellants also sought an order striking out
paragraph 1(c) of the defence. The ground put
forward was that the paragraph was immaterial
and that, in stating the purchase price of
$16,500.00 paid for the property some ten years
before the expropriation, it tended to prejudice the
fair trial of the action.
The paragraphs in question read as follows:
1. (c) The Plaintiffs Lloyd Thomas Britton and Margaret
Sarah Britton acquired title to the land described in sub
paragraph (a) hereof for a purchase price of $16,500.00 from
Levi M. Fretz and Norman G. Fretz trading under the firm
name style of Fretz Brothers by a Deed of Conveyance dated
the 13th day of November, 1963, and registered in the Registry
Office for the Registry Division of the County of Ontario for
the Township of Pickering on the 28th day of November, 1963,
as Instrument No. 116635.
5. With reference to paragraph 5 of the Statement of Claim he
admits that the lands held by Lloyd Thomas Britton referred to
in paragraph 1(b) herein have a frontage of 198 feet by a depth
of 264 feet and are contiguous to the lands held by Lloyd
Thomas Britton and Margaret Sarah Britton referred to in
paragraph 1(c) herein which lands contain approximately 50.06
acres with a frontage of 1,066.75 feet by a depth of approxi
mately 2,000 feet. He further admits that the lands held by
Lloyd Thomas Britton contain a residence surrounded by land
scaped lot. Subject thereto he says that he has no knowledge of
any other allegations of fact in the said paragraph 5 and
therefore does not admit the same.
7. With reference to paragraph 7 of the Statement of Claim he
says:
(i) The total amount of compensation thus paid by the
Crown to both the Plaintiffs in respect of the parcel of land
referred to in paragraph 1(c) hereof is $146,850.00.
9. With reference to Paragraph 9 of the Statement of Claim he
says:
(e) With respect to the lands referred to in paragraph 1(b)
hereof, he says that the amount paid to Lloyd Thomas
Britton as compensation includes payment for disturbance as
required by the Expropriation Act and the Plaintiff Lloyd
Thomas Britton is not entitled to any further compensation
in respect of disturbance with reference to the lands referred
to in paragraph 1(c) hereof, he says that the Plaintiffs did
not suffer damages for disturbance with reference to these
lands and in any event are not entitled to damages for
disturbance.
The application was not supported by any
affidavit or other evidence. The learned Trial
Judge refused to strike out paragraph 1(c) and he
did not grant an order for particulars as requested.
On both points he was, in our opinion, right.
Paragraph 1(c) is not, in our view, entirely
immaterial, even though it may turn out to be of
little importance and we do not think that the trial
could be prejudiced by its presence in the defence.
Nor was any case made out for the particulars
demanded. Subsection 14(3) of the Expropriation
Act requires that an offer of compensation be
accompanied by a copy of the appraisal on which
it is based, but there is no provision of that statute
or of the Rules of the Court which requires that
the several items making up the amount of an
offer be particularized in the Crown's pleading,
and an amount allocated to each of them. Nor is
there any principle of practice which would, with
out more, require the giving of such particulars
and nothing was put before the Court to show any
reason why in this particular case such particulars
were necessary, whether to enable the appellants
to plead or to prepare for trial. Moreover, with
respect to the demand for particulars of paragraph
5, the facts respecting residential use of the prop
erty were entirely within the knowledge of the
appellants and even if particulars ultimately
should be required, the appellants' demand for
them before discovery was, in our opinion,
premature.
On the other hand, the learned Trial Judge
made an order in the following terms and it is from
this, as well as from the refusal of the application,
that the appeal is taken.
ORDER
1. IT IS ORDERED that, within 45 days of the date of this Order,
each party serve on the other and file in the Registry of this
Honourable Court a document, entitled "Memorandum of
Contentions" containing a concise statement of the material
facts claimed by that party in the following particulars:
(a) the date of taking;
(b) the date the plaintiffs gave up possession to the
Defendant;
(c) the names, addresses and nature of interest of all other
persons having any right, title, or interest in the expropriated
property at the date of taking;
(d) any benefit resulting from the taking;
(e) any damage resulting from severance if the whole prop
erty was not taken;
(f) the highest and best use for the property taken at the
date of taking;
(g) the value to the owner of the property as determined
under section 24 of the Expropriation Act;
(h) the minimum market value in cash at the time of taking;
(i) the nature and extra value to the Plaintiffs of any special
economic advantage arising out of or incidental to their
occupation of the land;
(j) the amount of any costs, expenses and losses incurred as
a result of the Plaintiffs disturbance;
(k) the maximum amount of conceded benefit resulting from
the taking;
(1) the minimum amount of claimed damage resulting from
severance, if any.
2. IT IS FURTHER ORDERED that proceedings herein be stayed
until paragraph 1 of this Order has been complied with.
3. IT IS FURTHER ORDERED that, prior to or at the time of
making application for an Order fixing the time and place for
trial or hearing of this Action, each party shall serve on the
other and file in the Registry a document entitled "Memoran-
dum off Evidence as to Value", setting out:
(a) the names and addresses of all persons, including
appraisers and other experts, owners and former owners,
intended to be called to give opinion evidence on any issue as
to value;
(b) the various opinions as to value expected to be given by
each;
(c) the relevant facts as to each sale or other transaction
intended to be relied on as a transaction comparable to the
taking including dates, names of parties to and consideration
for such transactions and the date, registry number and
Registry Office of record in respect thereto.
PROVIDED that compliance with paragraph 3 of this Order shall
not be deemed to be compliance with the requirements of Rule
482.
Neither party had formally applied for such an
order and before us, counsel for the appellant
complained that he had neither forewarning of the
possible making of such an order nor an opportu
nity to be heard with respect thereto. His first
notice that it had been made, or that such an order
might be made, according to him, was some eleven
days after the order was made, and it was then
necessary to obtain an extension of time to appeal
from it. It appears, however, from the reasons of
the learned Trial Judge, that an earlier case, in
which Gibson J. had made a somewhat similar
order, had at least been mentioned by counsel for
the Crown in the course of argument.
On the hearing of the appeal, counsel for the ,
respondent sought to support the order as an exer
cise of the power of the Court under Rule 415(3) 1
to grant an order for particulars or a further and
better statement of the nature of the case on which
a party relies "on such terms as may be just".
Viewed as a whole, however, we do not think the
order can be regarded either as an order of the
kind applied for or as an order of any kind contem
plated by that Rule. Indeed, this order appears to
substitute for the procedure contemplated by the
Rules a new procedure going beyond anything
contemplated by them at this stage of the proceed
ing. It is, of course, conceivable that such an order
Rule 415. (3) The Court may order a party to file and
serve on any other party further and better particulars of any
allegation in his pleading, or a further and better statement of
the nature of the case on which he relies, and the order may be
made on such terms as seem just.
might, at a later stage, and in particular when
application is made to set the action down for trial,
be a useful device for getting on the record the
respective positions of the parties on relevant
points not elsewhere stated or agreed upon and in
such a case it could probably be made, on consent
of the parties, under Rule 473(1) 2 . Here, however,
there was no such consent, and even if no consent
were necessary under that Rule, we would not
have thought there was anything on the record to
justify the making of such an order at this stage of
the action.
The appeal will be allowed, the order of the
Trial Division will be set aside and the appellant's
motion will be dismissed. The appellants are en
titled to their costs of the appeal and the respond
ent to the costs of the motion in the Trial Division.
* * *
RYAN J. and MACKAY D.J. concurred.
2 Rule 473. (1) The Court may, either before or after the
commencement of an action or other proceeding, upon the
consent of all interested parties, give directions as to the
procedure to govern the course of the matter, which directions
shall, subject to being varied or revoked by subsequent order of
the Court similarly made, govern the matter notwithstanding
any provision in these Rules to the contrary.
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.