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BILL NO. 40

                                              Government Bill

                 
                                                               
              3rd Session, 56th General Assembly
                         Nova Scotia
                    44 Elizabeth II, 1995

                 
                                                               
                                                               
                                                               
                                                               
                                                               
                                                               
                                                               
                                                               
                 An Act to Amend Chapter 156
                of the Revised Statutes, 1989,
                    the Expropriation Act










                 
                                                               
                                                               
               The Honourable J. William Gillis
                     Minister of Justice


                 
                                                               
                                                               
                                                               
                                                               
                                                               
                                                               
                                                               
                                                               
                                                               
                                                               
                                                               
                                                               
                                                               
                                                             
                 
                                                               
                           Halifax
         Printed by Queen''s Printer for Nova Scotia
                               
                               
                      Explanatory Notes








         Clause 1 removes the requirement that a copy of the appraisal report be served on an
owner with the offer that is required to be made within ninety days after the deposit of the
expropriating document.


         Clause 2 enables an expropriating authority to make, in addition to the offer that is now
required to be made within ninety days after the deposit of the expropriation document, an offer
to settle prior to an expropriation hearing.




         Clause 3 makes an amendment that is necessary as a result of the amendment made by
Clause 1.



         Clause 4 provides that where the amount of compensation, as determined by the Board,
is less than the amount already paid, as required by the Act, on account of compensation, the
owner shall repay the difference to the expropriating authority.







         Clause 5 makes it clear that provisions that deem a mortgage paid in full, where the
amount of compensation paid to the holder of the mortgage is not sufficient to satisfy the
mortgage, apply to the mortgage only to the extent that the mortgage affects the expropriated
lands.











         Subclause 6(1) removes a provision that states that business loss shall not be determined
until the business has moved and been in operation for nine months or until a two-year period
has elapsed, whichever is earlier, and replaces it with a provision that states that business loss
shall not be determined until the business has moved and been in operation for twelve months
or until three years have elapsed from the date of the expropriation, whichever is earlier.




         Subclause 6(2) defines the manner in which goodwill is to be valued as part of a claim for
business loss.






         Clause 7 prevents a claim for compensation for injurious affection resulting from an
entrance to or exit from land being closed, as a result of the designation of land or a highway
as a controlled access highway, where another entrance or exit is available as a result of a
service or land access road being provided.






         Clause 8 repeals a provision dealing with costs that is made obsolete by the new provisions
dealing with costs contained in Clause 12.

         Clause 9 makes it clear that the Board shall determine compensation where the parties
cannot agree to compensation in all cases, and not just in those cases where there has been
unsuccessful negotiations.



         Clause 10

            (a) removes the power of the Utility and Review Board to exempt a party who
         wishes to adduce expert evidence at a hearing from the requirement that must be met
         before adducing expert evidence of filing, with the Board, within the time set out in the Act,
         a copy of the report of the appraiser or a full statement of the proposed evidence;

            (b) lengthens the period of time for filing from fifteen days before the hearing to
         sixty days before the hearing; and

            (c) replaces the present requirement for the filing of the proposed evidence,
         where the expert is not an appraiser, with a requirement for the filing of the expert's
         report.

         Clause 11 replaces the existing provisions dealing with the awarding of costs with new
provisions that

            (a) contain specific guidelines to be followed by the Nova Scotia Utility and
         Review Board in determining the amount of costs; and

            (b) provide that an expropriating authority is not liable to pay costs incurred by
         the owner after the offer to settle is made, in cases where the owner does not accept the
         offer and the compensation awarded is equal to or less than the compensation contained
         in the offer to settle.

         Clause 12 adds regulation-making powers.



                  An Act to Amend Chapter 156
                 of the Revised Statutes, 1989,
                     the Expropriation Act



         Be it enacted by the Governor and Assembly as follows:


         1  Subsection 13(3) of Chapter 156 of the Revised Statutes, 1989, the Expropriation
Act, is amended by striking out ", and shall serve a copy of the appraisal report upon the owner
at the time the offer is made" in the last three lines.


         2  Chapter 156 is further amended by adding immediately after Section 13 the
following Section:

            13A In addition to the offer referred to in subsection 13(2), an expropriating
         authority may make an offer to settle as defined in Section 52.


         3  Subsection 15(2) of Chapter 156 is amended by striking out ", and a copy of the
appraisal shall be sent to such person at the time of making the offer" in the third, fourth and
fifth lines.


         4  Section 16 of Chapter 165 is amended by adding immediately after subsection (2)
the following subsection:

            (3) If the amount paid pursuant to subsection (2) exceeds the amount of
         compensation as determined by the Board, the Board shall order the registered owner to
         pay the excess to the expropriating authority and, upon such order being made, the
         registered owner shall pay the excess to the expropriating authority.


         5  Subsection 27(11) of Chapter 156 is amended by adding

              (a)  ", to the extent that the mortgage affects title to the land," immediately after
         "shall" in the second line of clause (a);

              (b)  "upon payment of the amount payable to the mortgagee under subsection
         (10)" immediately after "purposes" in the fourth line of clause (a);

              (c)  ", to the extent that the mortgage affects title to the land," immediately after
         "shall" in the second last line of clause (b); and

              (d)  "upon payment of the amount payable to the mortgagee under subsection
         (10)" immediately after "purposes" in the last line of clause (b).


         6    (1)  Subsection 29(1) of Chapter 156 is amended by

                   (a)  striking out "nine" in the seventh line and substituting "twelve";

                   (b)  striking out "two" in the last line and substituting "three"; and

                   (c)  adding "from the date of the expropriation" immediately after
              "elapsed" in the last line.

              (2)  Section 29 of Chapter 156 is further amended by adding immediately after
subsection (2) the following Section:

                   (3)  For the purpose of determining the compensation for loss of goodwill,
              the value of the goodwill shall be determined in accordance with generally accepted
              accounting principles.


         7    Section 30 of Chapter 156 is amended by adding "(1)" immediately after the Section
number and adding the following subsection:

              (2)  No compensation is payable for the loss of access to land or egress from land,
         or both, where the loss is the result of a designation pursuant to the Public Highways Act
         of a highway or land as a controlled access highway, if other access to the land or egress
         from the land, as the case may be, is available as a result of a service or land access road
         being provided.


         8    Section 35 of Chapter 156 is repealed.


         9    Subsection 47(1) of Chapter 156 is amended by striking out "in respect of which a
notice has been served upon it under subsection (1) or (4) of Section 36" in the second and third
lines and substituting "where the parties have not agreed on the amount of compensation".


         10   (1)  Subsection 50(1) of Chapter 156 is repealed and the following subsection
substituted:

                   (1)  A party is not entitled to adduce the evidence of an expert witness at the
              hearing unless the party has filed with the Board and served upon the other party
              or parties at least sixty days before the hearing begins a copy of the expert's report.

              (2)  Subsection 50(2) of Chapter 156 is amended by striking out "Each" in the first
line and substituting "Subject to subsection (1), each".


         11   Section 52 of Chapter 156 is repealed and the following Section substituted:

              52   (1)  In this Section, "offer to settle" means a written offer of an amount in
         full compensation for land expropriated or for injurious affection caused to an owner, or
         for both, made by an expropriating authority to the owner at least seven days prior to the
         date of a hearing by the Board that is held to determine the amount of the compensation.

                   (2)  Subject to subsection (5), an owner whose interest in land is
         expropriated or injuriously affected is entitled to be paid the reasonable costs necessarily
         incurred by the owner for the purpose of asserting a claim for compensation.

                   (3)  Subject to subsection (5), where an expropriating authority and an
         owner agree on the amount of compensation, but do not agree on the amount of costs to
         be paid, the costs to be paid to the owner shall be determined by the Board.

                   (4)  Where the compensation awarded to an owner by the Board is greater
         than the amount offered in the offer to settle, the expropriating authority shall pay to the
         owner costs as determined by the Board.

                   (5)  Where the compensation awarded to an owner by the Board is equal
         to or less than the amount offered in the offer to settle, the owner is entitled to costs, as
         determined by the Board, to the date of service of the offer to settle but the owner shall
         bear the owner's own costs that are incurred after that date.

                   (6)  An offer to settle shall not be disclosed to the Board.

                   (7)  The costs payable to the owner are

                        (a)  those costs referred to in subsection (2), (3), (4) or (5); or

                        (b)  where the Governor in Council prescribes a schedule of costs,
                   the amounts prescribed in the schedule and not the costs referred to in clause
                   (a).

                   (8)  In a determination of costs pursuant to subsection (2), (3), (4) or (5),
         the following shall be taken into account:

                        (a)  the number and complexity of the issues;

                        (b)  the conduct of any party that tended to shorten or unnecessarily
                   lengthen the duration of the proceeding;

                        (c)  any step in the proceeding that was improper, vexatious, prolix
                   or unnecessary;

                        (d)  the reasonableness and relevance of appraisal and other expert
                   reports, including the cost of the reports;

                        (e)  the skill, labour and responsibility involved;

                        (f)  the amount of the claim;

                        (g)  any other matter relevant to the question of costs.

                   (9)  The expropriating authority shall pay interest on an unpaid account for
         costs payable pursuant to this Section at the rate of six per cent per year or such rate as
         determined by the Governor in Council, from the date the account is served on the
         expropriating authority by the owner.

                   (10) Costs awarded pursuant to this Section are payable upon settlement or
         final adjudication of compensation to the owner.


         12   Section 66 of Chapter 156, as amended by Chapter 11 of the Acts of 1992, is further
amended by adding immediately after clause (b) the following clauses:

              (c)  prescribing a schedule of costs payable to an owner under this Act and the
         rate of interest on unpaid costs;

              (d)  defining any word or expression used but not defined in this Act;