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.