DECISION 2017 NSUARB 75 M06755 NOVA SCOTIA UTILITY AND REVIEW BOARD IN THE MATTER OF THE EXPROPRIATION ACT - and - IN THE MATTER OF AN APPLICATION by S. & D. SMITH CENTRAL SUPPLIES LIMITED to determine compensation, including legal and other costs reasonably incurred, to be paid to it by HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF NOVA SCOTIA, in respect to the expropriation of land situate on No. 104 Highway in Lower South River, Antigonish County - and - IN THE MATTER OF AN APPLICATION by the ATTORNEY GENERAL FOR THE PROVINCE OF NOVA SCOTIA to re-open the hearing of the claim BEFORE: Roberta J. Clarke, Q.C., Member CLAIMANT: RESPONDENT: S. & D. SMITH CENTRAL SUPPLIES LIMITED Bruce T. Macintosh, Q.C. Sarah Macintosh, LL.B. ATTORNEY GENERAL OF NOVA SCOTIA Mark V. Rieksts, LL.B. HEARING DATE: March 23, 2017 DECISION DATE: May 17, 2017 DECISION: The Application by the Attorney General to re-open the hearing is dismissed.
-2- Table of Contents I II III INTRODUCTION AND BACKGROUND... ISSUES... SUBMISSIONS... Jurisdiction... Exercise of the Board s Discretion... Limited Purpose of Re-opening the Hearing IV ANALYSIS AND FINDINGS... Jurisdiction... Exercise of the Board s Discretion... Limited Purpose of Re-opening the Hearing V SUMMARY AND CONCLUSION... C O ^ t L O L O C O O O O f L O C O O
-3- I INTRODUCTION AND BACKGROUND [1] S & D Smith Central Supplies Limited ( Central or Claimant ) filed a claim against the Attorney General of the Province of Nova Scotia ( Province or Respondent ) for compensation under the Expropriation Act, R.S.N.S. 1989, c. 156, as amended, ( Act') with the Nova Scotia Utility and Review Board ( Board ). The claim arose from the expropriation of lands at Lower South River, Antigonish County for the purposes of twinning the Trans-Canada Highway. [2] The hearing of the claim concluded with final written submissions on June 3, 2016. The Board reserved its decision. [3] By letter dated November 29, 2016, Bruce T. Macintosh, Q.C., Counsel for Central, advised the Board and Mark V. Rieksts, Counsel for the Respondent, that Central would shortly be announcing the sale of its business to a commercial competitor. He stated that the sale did not include the Lower South River property or the Pomquet property. He further said that the negotiations for the sale had not begun until after the close of the hearing and the filing of submissions with the Board. [4] As a result, Counsel for the Respondent sought a preliminary hearing to address matters arising from this information. On December 20, 2016, he filed a broadly worded motion for disclosure of particulars regarding the sale and any other negotiations for sale of the Claimant s property, and for the introduction of fresh evidence, as the Board had not yet rendered its decision on the merits of the claim for compensation. [5] The Board held a preliminary hearing regarding the motion on January 5, 2017. At that time, Counsel for the Claimant confirmed that the truss mill portion of the
-4- Lower South River property had been included in the sale. This property was a separate parcel of land. [6] The Board ordered that the parties file written submissions on whether it should agree to re-open the hearing to receive what the Respondent then characterized as fresh evidence, and the Claimant described as new evidence. The Board also set the dates of March 23-24, 2017, for hearing this part of the Respondent s motion. [7] The Respondent filed its submissions on February 6, 2017, together with an Affidavit of Ian Wintrip, who had testified at the hearing on the merits on behalf of the Respondent. Mr. Wintrip s affidavit included a report he prepared dated February 2,2017. [8] On March 10, 2017, Counsel for the Claimant filed an Affidavit of Stephen Smith, and a report dated March 2, 2017, from PwC, whose representatives had testified at the hearing on the merits, together with his written submissions. [9] The Board was advised that neither party required the attendance of the affiants or any other person for cross-examination on the hearing of the motion, and that it had been agreed that the affidavits and reports could be filed on the record. [10] The Board received oral submissions from the parties on March 23, 2017, and reserved its decision. II ISSUES [11] The issues for the Board at this stage are: 1. Whether the Board has jurisdiction to re-open the hearing; 2. If the Board finds it has jurisdiction, whether it should exercise its discretion to order that the hearing be re-opened; and, 3. If the Board finds it should re-open the hearing, whether it should be for a limited purpose.
-5- [12] The Board understands that the parties propose to address, in later submissions, issues surrounding any disclosure which might be sought, should the Board order that the hearing be re-opened. [13] For the reasons set out below, the Board finds that it has jurisdiction to reopen a hearing. In this proceeding, the Board has decided that the Respondent has not demonstrated that the test for re-opening the hearing has been met, and thus has not discharged its burden. [14] Accordingly, the Board dismisses the motion of the Respondent. Ill SUBMISSIONS Jurisdiction [15] The Province submitted that the decision to re-open a hearing is a procedural matter, and that the Board is master of its own procedure. Regulation 26 of the Expropriation Procedure Regulations provides: 26 The Board may give such directions as to the practice and procedure to be followed in any proceeding before it as it considers proper under the circumstances. [Emphasis added] [16] The Claimant submitted that re-opening a hearing to receive new evidence is not procedural, but substantive. To be able to re-open a hearing, the Claimant submitted there must be a specific rule authorizing the Board to do so. Counsel for the Claimant compared the authority under the Act in accordance with the Expropriation Procedures Regulations, adopted by the Board as its Expropriation Rules, with the provisions of Rule IV, s. 9, of the Rules for the Regulation of Practice and Procedure, adopted by the Board as its Public Utilities Rules, which states:
-6- Rehearings 9 Applications for re-opening a cause after final submission, or for rehearing after final order, must be made by petition in writing, stating specially the grounds upon which the application is based. If the application is to re-open the cause for further evidence, the nature and purpose of the evidence must be stated, and the same must not be cumulative merely. If the application is for a rehearing, the petition must specify the findings of fact or of law claimed to be erroneous, together with a brief statement of the ground of the alleged error. When any decision, order or requirement of the Board is sought to be reversed, changed or modified by reason of facts and circumstances arising subsequent to the hearing, or to the order, or by reason of consequences resulting from compliance with such decision, order or requirement which are claimed to justify or entitle a reversal, change or modification thereof, such facts and circumstances or consequences must be fully set forth in the petition. [Emphasis added] [17] The Claimant argued that the exclusion of a similar provision in the Expropriation Procedures Regulations is intentional. [18] The Claimant submitted that Regulation 26 relates only to directions, and not procedural rules. Counsel said that while the Board has the authority to make rules under s. 12 of the Utility and Review Board Act, S.N.S. 1992, c. 11, as amended ( UARB Act ), the reference to directions in Regulation 26 cannot be taken to mean either rules or regulations. The Claimant said that s. 12 of the UARB Act only allows the Board to make rules. The Claimant said that the Board lacks a rule which would permit it to reopen a hearing. Regulation 26 would allow the Board to...create its own practice and procedure on an ad hoc or case by case basis. It is the position of the Claimant that Regulation 26 is ultra vires of the Board s authority granted by s. 12. [19] The Respondent said, however, that the Expropriation Procedures Regulations were adopted by the Board as its Rules of Practice and Procedure under s. 12 of the UARB Act, by Order in Council. The Regulations were made pursuant to the provisions of s. 66(e) of the Act, as noted by Fichaud, J.A., in Bishop v. Nova Scotia (Attorney General), 2006 NSCA 114.
-7- [20] Further, the Claimant argued that Regulation 26 relates only to matters coming before the Board, and that its claim had already come before the Board, and nothing further is required by way of practice or procedure. Post-hearing matters, in the view of the Claimant, are not addressed under either Regulation 26 or Regulation 23. [21] The Respondent submitted: The Board's power over practice and procedure in an expropriation matter is not limited to the duration of the hearing, but to all aspects of proceedings before it, both pre-and post hearing, for the purpose of ensuring that a fair and full examination of the evidence in a compensation claim is achieved. [Respondent s Pre-Hearing Brief, p. 5, February 6, 2017] [22] The Province said that Regulation 26 is broader than Regulation 23 which relates to procedure at a hearing. The Province argued that a proceeding extends not only to pre-hearing processes, but post-hearing processes,...[extend] to the disposition of the compensation before the Board.... Because of this, the Respondent said, the Board is able to make a procedural ruling after it has reserved its decision. [23] The Province relied on the comments of the Court of Appeal in Bishop where the Court said: [5] Section 66(e) of the Expropriation Act authorizes the Lieutenant Governor-in-Council to make regulations generally for any matter or thing necessary to effect the purposes of this Act. Regulation 26 of the Expropriation Procedures Regulations, NS Reg 103/74 (enacted by Order-in-Council 74-1366) under the Expropriation Act says: The Board may give such direction as to the practice and procedure to be followed in any proceeding before it as it considers proper under the circumstances. Section 12 of the URB Act authorizes the Board to make rules governing practice and procedure. By NS Reg. 291/92, the Board adopted the Expropriation Procedures Regulations in Order-in-Council 74-1366 as the Board s Rules of Practice and Procedure under the Expropriation Act. [6] The only issue is whether Regulation 26 gives the Board the legal authority to direct that an expropriating authority s expert submit to discovery. If the Board has the legal authority, the Attorney General does not question the Board s exercise of discretion to direct the discovery in this case.
-8- Regulation 26 [9] The Board said: In the Board s view ordering discovery, is a practice matter or procedural matter relating principally to prehearing disclosure. Discovery does not operate to increase the jurisdiction of the Board or to create, terminate or extend rights which are not procedural in nature. It simply extends prehearing disclosure consistent with practices already adopted by the Board. The purpose of the Expropriation Act is to ensure that every person whose land is expropriated, without their consent, is compensated for such expropriation. Discovery does not broaden or change that intent or purpose. [11 ] Section 12 of the URB Act delegates to the Board the power to make rules respecting practice and procedure. Regulation 26 authorizes the Board to give directions as to practice and procedure. The Attorney General says that the discovery order is not practice or procedure, but substance. The Attorney General s factum elaborates: 18. It is submitted however that ordering examinations for discovery is not simply a matter of procedure. Particularly so where there are no rules around the conduct, the impact, or the use of the examination. Examinations for discovery can compel the appearance of persons who may or may not be a party or have an interest in the matter, to answer to questions under oath and to produce information on documentation. By virtue of a legal proceeding and the laws of a jurisdiction, a party may have the right to compel others to submit to this process.... 22. Discovery of documents and oral discovery is a matter of entitlement which Legislatures have allowed courts to implement or order through the adoption of rules. The power was given to common law courts in Canada through Judicature Acts. The import of this is that discovery was not merely a matter of procedure. It was a right of a party to litigation that developed through the recognition of the legislative bodies.... [12] The Attorney General cites MacAulay & Sprague Practice and Procedure Before Administrative Tribunals, vol. 1, s. 9.2: 9.2 WHAT IS PROCEDURE? Of course, in determining your procedure you will need to know exactly what procedure is. Frequently it is easier to say what procedure is in the abstract than to recognize it in real life. Procedure, which is also known as practice is the means by which one enforces or brings about one s substantive rights. Here are two general definitions from the case law: 1. The word procedure denotes the mode by which a legal right is enforced... 2. It is not always easy to classify rules of law into those which are substantive and those which are procedural, but, generally speaking, it may be said that substantive rules give or define the right which it is sought to enforce and procedural rules govern the mode of proceeding or machinery by which the right is enforced. Unfortunately, the distinction between substantive law on the one hand and procedure on the other is not easy to make in practice. I suggest that the test is the effect of the rule in question. Things which operate to increase or decrease the jurisdiction of a body, or to create, terminate or extend rights are not procedural in nature. Things which stream,
-9- control or shape the manner in which existing rights are pursued are procedural. [my emphasis] [13] The Attorney General submits: The Rules of practice and procedure which may be implemented by the Board can only relate to practice and procedure of the hearing before it and not to the substantive rights of the parties. [14] I respectfully disagree with the Attorney General s submission. The discovery order clearly is practice and procedure. The issue of substance is the calculation of the expropriation compensation award. The discovery order did not determine any aspect of that compensation award. The discovery direction is a mode of proceeding or machinery by which the right is enforced" and is one of the things which stream, control or shape the manner in which existing rights are pursued, i.e. the italicized words to define procedure in the passage from MacAuley & Sprague quoted earlier. [15] Neither do I agree with the Attorney General s suggestion that the discovery process in the Civil Procedure Rules is substance rather than procedure. The Civil Procedure Rules, including those relating to discovery, are authorized by s. 46 of the Judicature Act RSNS 1989, c. 240: Nova Scotia v. Annapolis (County), 1996 CanLII 5341 (NS SC), 1996 N.S.J. No. 412 (C.A.) at 4. Section 46 does not specifically mention discovery but in s- ss. (b) and (j) authorizes rules of court respecting practice and procedure. [16] Does Regulation 26 extend to practice and procedure before the hearing? In my view, it does. Regulation 26 is preceded by Regulation 23 of the Expropriation Procedures Regulations: 23. Subject to these regulations, the procedure at the hearing of any proceedings shall be such as the Board may direct. 26. The Board may give directions as to the practice and procedure to be followed in any proceeding before it as it considers proper under the circumstances, [emphasis added] [17] The Attorney General says that in any proceeding in Regulation 26 means the same thing as at the hearing in Regulation 23, and that Regulation 26 just reiterates the point for emphasis. This submission is unpersuasive. Reiterative redundancy is not an accepted principle of statutory construction. [18] Regulation 10 of the Expropriation Procedures Regulations says: 10 Proceedings before the Board for a determination of compensation shall be commenced by a notice of hearing which shall be served upon all known parties affected by the determination sought and shall be filed with the Board. Regulations 11-21 prescribe the exchange of statement of claim and reply that follows the notice of hearing and the ensuing process to schedule the hearing. The proceeding begins with the initial notice of hearing, well before the actual hearing. [19] Regulation 23 deals expressly with procedure at the hearing. It follows, to avoid tautology, that Regulation 26 extends to practice and procedure in the proceeding before the hearing. The Board s procedure power under Regulation 26 begins when the notice of hearing is filed under Regulation 10. Mr. Bishop filed his notice of hearing on April 27, 2005, before his request for discovery dated September 28, 2005 and the Board s ruling of December 2, 2005. [20] The Province cites Canadian Pacific Air Lines Ltd. v. Canadian Air Lines Pilots Association, 1993 CanLII 31 (SCC), [1993] 3 S.C.R. 724. The court held that the Canada Labour Relations Board had no power to order pre-hearing production of documents. The Board s authority derived from s. 118 of the Canada Labour Code (quoted in S.C.R. pp.
10-733-5). Section 118 gave the Board power to summon witnesses, to administer oaths, to receive and accept... evidence, to examine... such evidence as is submitted to it...", to examine documents..., and to make such examination of records and such inquiries as it deems necessary. Justice Gonthier for the majority said (pp. 736-7): The structure of the provision limits the exercise of the power of compulsion to the context of a formal hearing. [21] The different and broader wording of s. 12 of the URB Act and Regulation 26 does not restrict the Utility and Review Board s power as s. 118 restricted the power of the CLRB. There is no language, similar to the words quoted above from s. 118, that confines the Utility and Review Board s procedure power to the hearing itself. [22] Statutory wording is read in its context and in its grammatical and ordinary sense. harmoniously with the scheme and object of the legislation and intention of the Legislature: Dalhousie Legal Aid Service v. N.S. Power Inc., 2006 NSCA 74 (CanLII) at If 19 and cases there cited. The ordinary meaning of Regulation 26 in its context, as discussed earlier. supports the legislative objective to promote an effective hearing process before the Board. The Board s decision described how discovery may promote that objective: Discovery of expert appraisers should assist the hearing process by facilitating disclosure, avoiding surprise, and ultimately, perhaps, enabling the Board to reach a more informed decision. [23] Regulation 26 gives the Board the authority, on a case-specific basis, to direct that an expert witness be discovered. [Emphasis added] [24] The Claimant argued that the Board, in its decision in Re Bishop, [2005] NSUARB 122, had recognized the fact that the Board did not have a Rule regarding discovery, which was the issue in that matter. Based on this, the Claimant said the Board recognized the need to create a proper rule and not leave the matter to an ad hoc determination. [25] In any event, the Claimant urged the Board not to give weight to the decision of the Court of Appeal in Bishop since the issue of the vires of Regulation 26 was not before the Court, and because the discovery process was a pre-hearing proceeding. The case did not address post-hearing aspects of a proceeding. Further, Counsel for the Claimant submitted that discovery falls within the ambit of practice and procedure. [26] The Claimant took exception to the Respondent s position that the powers of the Board extend to both pre- and post-hearing phases of a proceeding, arguing that the adjudication process is...distinctly separate... from a hearing.
-11 - [27] In his written submissions, Counsel for the Claimant discussed the concept of an implied power to reconsider a decision, quoting from Brown and Evans, Judicial Review of Administrative Action in Canada. He urged the Board not to infer such a power, since if one accepts that re-opening a hearing is a matter of practice and procedure, the UARB Act gives the power to make such a Rule, and the Board has not done so. [28] The Respondent submitted that ordering the re-opening of the hearing to receive new evidence is a procedural mechanism which does not in any way enlarge the jurisdiction of the Board. The Board s jurisdiction under the Act is to determine the compensation owed to the property owner because of the expropriation. [29] The Claimant referred to a list of matters considered to be substantive, and not procedural, in Macaulay and Sprague, Practice and Procedure Before Administrative Tribunals, at page 9-7 which includes the authority to re-hear a matter. The text cites as support for this the decision of the Federal Court in Baudisch v. Canada (Civil Aviation Tribunal), [1997] FCJ No. 474. The Claimant says re-opening a matter is tantamount to re-hearing a matter. [30] The Claimant submits that re-opening a hearing is a substantive matter because it would extend the rights of the Province, which Fichaud, J.A., quoting from Macaulay and Sprague, said, at paragraph 12 in Bishop, is not procedural: Things which operate to increase or decrease the jurisdiction of a body, or to create, terminate or extend rights are not procedural in nature. [31] Further, the Claimant referred to two decisions where, it said, the Board had not directed its attention to its authority to make rules governing re-opening of a case: Can-Euro Investments Limited v. Nova Scotia (Utility and Review Board), 2008 NSCA 123, and Myers v. Sable Offshore Energy Inc., [2002] NSUARB 22.
-12- [32] In Can-Euro Investments, the Court of Appeal said, at paragraphs 35-37: A judge s decision whether or not to allow the reopening of a case is a discretionary one which is entitled to considerable deference. The same principles apply where an administrative board is exercising its discretion in deciding whether or not to reopen a hearing. [33] The Claimant said that the latter statement should be considered as...dicta, and not intended as a definitive statement that the NSUARB has implicit jurisdiction to entertain a motion to re-open a hearing. [34] In Myers, the Claimant said, there was no analysis or argument before the Board about its authority to re-open a hearing, and the parties had merely accepted the Board s jurisdiction to re-open. [35] In contrast, the Respondent said: The decision to reopen a hearing to consider or present further evidence is a matter of procedure and practice, as a "mode by which a legal right is enforced, the issue of substance or right being the assessment of compensation. The effect of the act of reopening a proceeding is to "stream, control or shape the manner in which existing rights are pursued", in the same way as disclosure and discovery are issues of procedure (see Bishop v. AGNS, supra, paras. 12 and 14) [Respondent s Pre-Hearing Brief, February 6, 2017, p. 7] [36] In support of its position, the Province referred to a decision of the Alberta Land Compensation Board, Marks v. Town ofwestlock, 2005 Can HI 78640, which said the Land Compensation Board had broad powers over its procedure, which Counsel said is similar to this Board. There the relevant section of the Rules of Practice and Procedure said: 17 Subject to these Rules, any proceedings before the Board must be held in accordance with the procedures directed by the Board. [37] The Alberta Board found this sufficient authority to re-open a hearing after it had concluded the hearing, but had not issued any order.
-13- [38] The Province said that Regulation 26 allows the Board in a proceeding to give the directions it considers proper in the circumstances, and that similar to the Alberta Board, this would allow the Board to re-open the hearing. [39] Without prejudice to its submissions on the jurisdiction of the Board, the Claimant, both in written and oral submissions, asked the Board to consider whether it should exercise its discretion to re-open the hearing to receive new evidence. Exercise of the Board s Discretion [40] The Respondent submitted that, under the Act, the Board is required to determine full and fair compensation. The Claimant did not disagree. However, they did not agree on how the Board should do this, considering the new evidence of the sale of Central s business. [41] The Respondent said that the Board...is not restrained by...specific rules of court, but should be guided by the principles outlined in various court decisions in deciding whether to re-open the hearing. The Province cited the decision of the Nova Scotia Supreme Court in Jeffrie v. Hendriksen, 2011 NSSC 460, where the Court said: [34] Both trial and appellate courts have adopted a flexible approach to reopening trials/proceedings and re-examining trials/proceedings during the appeal process. Ultimately the key consideration is to do justice as between the parties. "Doing justice" requires an examination and balancing assessment of "the risk of both procedural and substantial injustice to both parties" per Cromwell, JA (as he then was) in Griffin supra. [42] Jeffrie cited the decision of Cromwell, J.A., of the Court of Appeal in Griffin v. Corcoran, 2001 NSCA 73, which the Province said is the leading case in Nova Scotia. Griffin was also relied upon by the Claimant. Both cases related to matters where a hearing was complete, and reasons had been given, though a formal judgment or order had not been issued.
-14- [43] The Province claimed that, based on the decision of Cromwell, J.A., in Griffin, this Board should balance procedural fairness and the risk of substantial injustice to both parties in deciding whether to re-open hearing. The Court described a decision to re-open after a decision as...an extraordinary and rare step that must be undertaken with great caution. [44] The Claimant submitted that finality is important when a case is closed. Counsel referred to the decision of the Supreme Court of Canada in Townsend v. Kroppmanns, [2004] 1 SCR 315, a tort case, which he said was applicable, based on the principles set out in Toronto Area Transit Operating Authority v. Dell Holdings Limited, [1997] 1 S.C.R. 32, regarding the nature of an expropriation compensation claim. Counsel set out the following portion of the Townsend decision: 59. At 1[18: In fixing the award of damages in a tort action, courts rely on many principles. Three of them are of particular relevance to this case. First, there is the principle that damages are assessed and not calculated. The second principle is finality, according to which courts award a one-time lump sum of damages. Finally, the third principle is that the plaintiff has property over the award. I will examine each of these principles and explain how they affect the disposition of this case. 19 First, damages are assessed and not calculated. Since it is impossible to calculate the exact amount of money that will be needed in the future, courts have to rely on actuarial evidence: Andrews v. Grand & Toy Alberta Ltd., 1978 CanLI11 (SCC), [1978] 2 S.C.R. 229, at pp. 236-37. Actuarial evidence is itself based on experience and not on individual circumstances. Future costs and loss of future earnings are amounts that are estimated because, by definition, they are not yet incurred or earned. Although this hypothesis may seek to simulate reality, it remains notional. Courts can only provide the victim with an adequate amount to cover the loss caused by the defendant. There is no assurance that the amount will cover the actual costs of care that become incurred nor is the defendant guaranteed that he or she is not disbursing more than the strict minimum that becomes necessary to cover the victim s loss. In assessing damages, courts do not take into consideration what victims actually do with the award... 20 Secondly, damages are awarded in a lump sum in order to respect the principle of finality: Andrews, supra, at p. 236. According to this principle, there has to be a clean break between the parties. It would be inconsistent with the principle of finality to authorize repeatedly revisiting the amount assessed as full and fair compensation at trial whenever new evidence became available. During the prospective period for which damages are awarded, the hypothesis may prove overly pessimistic for a period but overstated for another period. The award should not be reassessed every time reality reveals a discrepancy with the forecast. Therefore, monitoring the respondent s use of
-15- the award or adjusting it with her changing circumstances would create more uncertainty than the present rule, would undermine the purpose of the statutory discount rate, and would improperly interfere with the third principle of damages relevant to this case. 21 This final and most important principle is that the plaintiff has property of the award. The plaintiff is free to do whatever he or she wants with the sum of money awarded: Andrews, supra, at pp. 246-47. On this issue, I am in complete agreement with the reasons delivered by Finch C.J.B.C. in the Court of Appeal. He held that it is not relevant to inquire into how the plaintiff chooses to spend the amounts recovered for the assessment of damages for management fees and tax gross-up. Consequently, management fees and tax gross-up are to be assessed based on the first assessment of damages and not according to the amount available for investment as eventually found at some indeterminate future date. In other words, the appropriate basis for calculation is the one determined at trial, without considering what happens thereafter. It is improper for a trial judge to consider what the plaintiff does with awarded damages. As Dickson J., as he then was, wrote in Andrews, supra, at pp. 246-47: It is not for the Court to conjecture upon how a plaintiff will spend the amount awarded to him. There is always the possibility that the victim will not invest his award wisely but will dissipate it. That is not something which ought to be allowed to affect a consideration of the proper basis of compensation within a fault-based system. The plaintiff is free to do with that sum of money as he likes. [Italics [sic] added throughout this Brief] 60. And further at 1[23:...The goal of compensation is to provide the Plaintiff with the means to be placed in the position she would have been in had the Defendant not committed a tort against her. The Plaintiff s future actions do not alter the Court s duty to meet this objective. In the case before this Board, compensation is the consequence of expropriation, not a tort. Consistent with the principles of Dell Holdings, the obligation of compensation to the Claimant is equal to or exceeds that of the tortious victim described by the Supreme Court. [45] The Province submitted that its motion is different than the one in Griffin in that the Board s decision has not been rendered, but remains on reserve. It suggested that the test is less onerous in such a case, saying that the inference from the decision in Jeffrie is that where a decision has not been made,...the justice of the situation will favour a re-opening of the hearing to introduce new evidence. [46] The Claimant relied on Jeffrie as well, noting the Court had said that the further along in the litigation process,...the more significant and compelling the reasons for review will need to be before a court will reconsider an existing decision. However,
-16- the Claimant did not agree with the Respondent s suggestion that Jeffrie implied favouring re-opening. [47] The Province also relied on a decision of the British Columbia Supreme Court in Vander Ende v. Vander Ende, 2010 BCSC 597, and decisions of the Prince Edward Island Supreme Court in Dover v. PEI, 2003 PESCTD 106, and Sunny Isle Farms Limited v. Mayhew, [1972] 2 Nfld. & P.E.I.R. 21 (PESCTD). In Vander Ende, the request to re-open the case came during final argument; in Dover, it came after the trial, but before the decision; and, in Sunny Isle, the motion occurred after the court had reserved, but before it had rendered, its decision. [48] Finally, the Province relied on s. 19 of the UARB Act, which states: 19 The Board may receive in evidence any statement, document, information or matter that, in the opinion of the Board, may assist it to deal with the matter before the Board whether or not the statement, document, information or matter is given or produced under oath or would be admissible as evidence in a court of law. [49] According to the Province, this supports the exercise of the Board s discretion to re-open the hearing...in the interests of justice and to ensure a full and fair hearing.... The Province says that the evidence of the sale by Central and the particulars relating to the sale are relevant, and re-opening for the purpose of receiving it will not be either procedurally unfair or prejudicial to the Claimant. [50] The Respondent submitted that the evidence of the sale could not have been obtained before the hearing, and that there was no lack of due diligence on its part as a result. The Claimant does not argue that the evidence could have been obtained before or during the hearing. [51] The Claimant identified two other conditions, based on the decision of the Supreme Court of Canada in Sagaz Industries Canada Inc. v. 671122 Ontario Limited,
-17- [2001] SCC 59, which must be met before a court (and by inference, this Board) should receive new evidence. The first is that had the new evidence been presented at the hearing it would...probably have changed the result or...have an important influence on the result ; the second is that it must be credible. [52] Based on the report of PwC which the Claimant filed on this motion, Counsel for Central argues that that calculation of future losses is, at best, uncertain, and relies on the best evidence available. PwC...[stands] by the reliability of [its] loss valuation as presented to the Board, as of the close of the Hearing. Counsel noted that the PwC witnesses were independent experts whose evidence is intended to assist the Board in its determination of compensation. He said that their evidence was...unrebutted, unchallenged, opinion. Further, he said there was no evidence to dispute the methodology employed by PwC. [53] The Respondent submitted that the evidence it seeks to bring before the Board, specifically with respect to incremental future costs claimed by Central, is key to the determination of compensation. Should the Board fail to consider such evidence, the Province said it would be a substantial injustice to it. It refers to the comments of Mr. Wintrip in his February 2, 2017, Affidavit, which suggest that the uncertainty regarding these costs, which he identified in his evidence, is increased. Counsel for the Province suggested that because of the sale, Central could not in fact make a claim for future incremental costs. According to Counsel s submission, because the amount in question is substantial, the balance tips in favour of re-opening the hearing. [54] The Claimant argued that the Board should determine the full and fair compensation due to it on a reasonable balance of probabilities based on the evidence
-18- at the hearing. To allow new evidence on issues already aired at the hearing would...[allow] a party to put or restate a significant portion of its case twice.... Counsel submitted that the new evidence the Province seeks to introduce does not meet the high threshold of importance referred to in Griffin to warrant re-opening the hearing. [55] The Claimant outlined numerous practical consequences which it said would flow from granting the motion by the Respondent. Further, it recounted how it would be unjust to Central to allow the re-opening of the hearing, given the length of time since Central first became aware of the Province s plans regarding the highway, and the complexity and delays Central has encountered. [56] Thus, the Claimant said that the Respondent had not discharged the burden of demonstrating that the Board should exercise its discretion to re-open the hearing. Limited Purpose of Re-opening the Hearing [57] In oral submissions, the Respondent said it wished to re-open the hearing for a limited purpose. It wanted the Board to take notice of the sale of Central s business because it said the new evidence would have an impact on the loss claimed by Central, which the Province described as a substantial amount. Counsel submitted that both Mr. Wintrip and PwC say that evidence is relevant. [58] The Respondent also said that it needs to know the chronology of events leading up to the sale as it goes to the question of the necessity of a second distribution centre, which is a factor in the claim. If the chronology of negotiations were disclosed, this would verify the accuracy of the Claimant s statements, and establish the credibility of its claims regarding expansion plans. Counsel for the Respondent agreed that the
- 19- question of expansion plans had been canvassed extensively at the hearing, but sought an independent check. [59] The Claimant stated that if the hearing were to be re-opened to take the sale into account, PwC would be required to employ a completely different methodology to value the loss incurred by Central. Counsel said at the hearing that the case cannot be opened partially because the elements of Central s claim are interconnected. At most, the Claimant said the hearing could be re-opened for the limited purpose of receiving evidence that the sale had occurred. In response to a question from the Board, Counsel for the Claimant acknowledged that the fact of the sale is before the Board through the Affidavit of Mr. Smith. [60] Counsel for the Respondent said that Mr. Wintrip had accepted the methodology which had been used initially by PwC. His initial opinion of uncertainty remains because of the sale. [61] The Respondent rejected the Claimant s submission that a new methodology would have to be employed. Counsel for the Respondent suggested that Mr. Wintrip would merely need to adjust his calculation of future incremental capital and operating costs, based on the evidence which the Province would seek to have disclosed if the Board orders the hearing to be re-opened. In his view, it would only be necessary for PwC to do the same thing. He said the claim that a new methodology would be required supports his contention that the critical assumption in the PwC reports referred to in the hearing (that the business would continue indefinitely) is weak. [62] Counsel for the Respondent noted that the PwC report filed by the Claimant on this motion acknowledged that, given the sale, the premise of continuing the business
-20- indefinitely is...no longer valid. He said this is confirmed by Mr. Wintrip. PwC said that the impact of the sale has caused the quantification of the loss to differ. Mr. Rieksts submitted that PwC s requirement for a new methodology appeared to assume that the Board would be using a new date for the quantification of the loss. He agreed with the Board that the date in question is the date of the expropriation, and that the loss would be what would be reasonably foreseeable as of that date. [63] Mr. Macintosh said the valuation date is clearly the expropriation date of May 1, 2012. He submitted that PwC s reference was intended to mean a new hearing date, not a new effective date of loss quantification. [64] Mr. Rieksts urged the Board to not allow itself to be hogtied by the Claimant s submissions on the use of any new methodology. He viewed this as a separate motion to re-open the hearing; he suggested this would mean the Claimant would be looking to re-open the entire hearing, which would amount to a re-hearing. [65] The Province said that the Claimant had chosen its methodology and there is no need to change it. There would be no prejudice to the Claimant in re-opening the hearing as far as the methodology they had chosen in the first place is concerned. Therefore, Counsel asked the Board to consider the Province s motion, which he described as simple on its own merits. IV ANALYSIS AND FINDINGS [66] The burden is on the Respondent to satisfy the Board that it has the jurisdiction to order the re-opening of the hearing, and that it should exercise its discretion to do so, and allow the Respondent s motion.
-21 - Jurisdiction [67] Under the provisions of s. 47(1) of the Act, the Board is charged with determining the compensation due because of expropriation where the parties have not been able to agree, and...in the absence of agreement, determine any other matter required by this or any other Act to be determined by the Board. [68] Several authors have commented on the difficulty in identifying whether a thing is procedural or substantive. As noted by Fichaud, J.A., in Bishop, Macaulay and Sprague said: 9.2 WHAT IS PROCEDURE? Of course, in determining your procedure you will need to know exactly what procedure is. Frequently it is easier to say what procedure is in the abstract than to recognize it in real life. Procedure, which is also known as practice is the means by which one enforces or brings about one s substantive rights. Here are two general definitions from the case law: 1. The word procedure denotes the mode by which a legal right is enforced... 2. It is not always easy to classify rules of law into those which are substantive and those which are procedural, but, generally speaking, it may be said that substantive rules give or define the right which it is sought to enforce and procedural rules govern the mode of proceeding or machinery by which the right is enforced. Unfortunately, the distinction between substantive law on the one hand and procedure on the other is not easy to make in practice. I suggest that the test is the effect of the rule in question. Things which operate to increase or decrease the jurisdiction of a body, or to create, terminate or extend rights are not procedural in nature. Things which stream, control or shape the manner in which existing rights are pursued are procedural. [69] Abrams and McGuinness, Canadian Civil Procedure Law, 2nd ed., (Lexis Nexis, 2010) write at pp. 8-9: Briefly stated, procedural law affords the mechanism by which effect may be given to substantive rights and obligations. Yet, if procedural law is to be explained by way of contrast to substantive law, it must be acknowledged that the distinction between them is not always clear... Nevertheless, as one Australian court has noted, even allowing that the dividing line between the two branches of law is sometimes doubtful or even artificial, it is a line that nonetheless exists, and it is one that the courts must often find, in order to resolve a given dispute.
-22- Despite the inherently vague distinction, in general terms laws are procedural where they are directed to governing or regulating the mode or conduct of a court or analogous proceedings... a more specific and useful definition of substantive law is that laws that affect the existence, extent or enforceability of the rights and duties of the parties to an action are laws that are substantive. We may therefore state as an axiom that the purpose of procedural law is to provide a suitable mechanism to give effect to those rights and obligations that are created by the substantive laws of the land. femphasis added] [70] The Board acknowledges that the dividing line exists, and regardless of the difficulty in determining where it lies, it must do so to deal with the submissions of the parties. [71] In this matter, the Board finds that the Act is a substantive law which gives a person whose property has been expropriated the right to full and fair compensation. Clearly, there are some procedural matters addressed in the Act, such as s. 3(2) which sets out the mode of service of documents, s. 11 which addresses the deposit of expropriation documents in the appropriate land registry, and s. 16 regarding payment, for example. These do not take anything away from the issue of substance which Fichaud, J.A., stated in Bishop is the calculation of the expropriation compensation award. [72] The Board agrees with the Respondent that the Expropriation Procedures Regulations set out the way a claim for compensation is to be made, and are, therefore, procedural. They stream, control or shape the manner in which existing rights are pursued. They do not in any way extend the Board s jurisdiction, nor do they extend the substantive rights of the parties. They are the mode or machinery by which rights are determined, as submitted by the Respondent.
-23- [73] Before addressing whether Regulation 26 gives the Board authority to reopen a hearing, the Board considers it needs to address the arguments of the Claimant with respect to the vires of the Regulation. [74] The Board notes that, as submitted by the Province, s. 66(e) of the Act provides that the Governor in Council may make regulations generally for any matter or thing necessary to effect the purposes of this Act". Further, s. 68 provides that such regulations...shall be regulations within the meaning of the Regulations Act. [75] The Regulations Act, R.S.N.S 1989, c. 395, states in s. 2(g): (g) "regulation" means a rule, order, proclamation, regulation, by-law, form, resolution or tariff of costs or fees made in the exercise of a legislative power conferred by or under an Act of the Legislature (i) by the Governor in Council, (ii) by the minister presiding over any department of the public service of the Province or by any official of such department, whether or not such regulation is subject to the approval of the Governor in Council, (iii) by any board, commission, agency or body listed in the Schedule to this Act or added thereto by the Governor in Council in accordance with this Act, whether or not such regulation is subject to the approval of the Governor in Council, or (iv) the exercise of which power is declared by the Act conferring it to be a regulation within the meaning of this Act, but does not include a rule, order, proclamation, regulation, by-law, form, resolution or tariff of costs or fees made by (v) a local authority, or (vi) a corporation incorporated by private or public Act of the Legislature or by the board of directors or the board of management of such corporation unless it is a board, commission, agency or body listed in the Schedule or added thereto by the Governor in Council in accordance with this Act; [emphasis added] [76] The Board of Commissioners of Public Utilities is listed in the Schedule referred to, and by s. 3 and s. 47 of the UARB Act, that Board is continued as the Nova Scotia Utility and Review Board. [77] The Board is given the functions, powers and duties...conferred or imposed on it by... the Act by s. 4(1 )(a) of the UARB Act.
-24- [78] As noted by Fichaud, J.A., in Bishop, pursuant to s. 12 of the UARB Act, the Board adopted the Expropriation Procedures Regulations by N.S. Reg. 291/92 which states: 1 These rules are made pursuant to Section 12 of the Utility and Review Board Act and apply to any proceedings before the Board under the Expropriation Act. 2 These rules may be cited as the Expropriation Rules. 3 The Board adopts the regulations made pursuant to the Expropriation Act by Order in Council 74-1366 as its Rules of Practice and Procedure under the Expropriation Act. [emphasis added] [79] Based on the foregoing, the Board rejects the argument of the Claimant that Regulation 26 is not a rule. The Claimant said that, because this Regulation refers to directions as to practice and procedure, it allows the Board to...create its own practice and procedure on an ad hoc or case by case basis. In the view of the Board, it is authorized to do exactly that, qualified by the proviso as it considers proper under the circumstances [emphasis added]. That is what the rule allows. Regulation 26 gives the Board discretion in a procedural matter. [80] The Claimant submitted that once the hearing had concluded, it was no longer open to the Board to give any directions. Again, the Board agrees with the Respondent; Regulations 26 and 23 differ, in that the former refers to a proceeding, and the latter to a hearing. In the view of the Board, a proceeding is the entire process, from the filing of a claim to its disposition. The Board does not accept the narrow interpretation suggested by the Claimant. Thus, the Board can give directions on prehearing matters (such as discovery as in Bishop), during the hearing, and after the hearing as may be required.
-25- [81] Therefore, the Board finds it has the authority to re-open a hearing if, in its discretion, it considers it should do so. How the Board should exercise this discretion is discussed below. Exercise of the Board s Discretion [82] The leading cases in Nova Scotia (Griffin and Jeffrie) both considered reopening after reasons for decision had been given, but no order or judgment issued. They are, therefore, different from this matter. However, from other cases cited by the Respondent and noted above, as well as the Board s own interpretation of its jurisdiction, the Board finds that, in appropriate circumstances, a case may be re-opened after the hearing concludes, but before a decision is made. [83] In Myers, the Board had not yet made its decision when the Claimant sought to re-open the case by introducing new evidence. The Board applied a three-part test, referring to a decision of its predecessor, the Expropriations Compensation Board. The test is similar to that in Sagaz. [84] The Board considers, therefore, to decide that re-opening the hearing is in the interests of justice, it must be satisfied that (1) the evidence could not have been available earlier through due diligence; (2) had the evidence been presented at the hearing it would have a material effect on the decision, or in the words of the Board in Myers, practically conclusive of an important issue; and (3) the evidence must be credible. [85] At this hearing, the parties did not dispute that the sale by Central took place after the close of the hearing and final submissions. Although the Board has some