With apologies to Professor Kanner (who regularly features a "Lowball Watch" on his blog), we offer this report of Down v. Ministry of Transportation, No. LC140038 (May 12, 2016), a trial-level property owner victory by our Toronto colleague Shane Rayman (last seen in the pages of this blog winning a great case in the Supreme Court of Canada). We've been meaning to post the decision for a while, but got caught up in other things. We probably should have waited at least another couple of days for Canada Day, but oh well.
But before we get into today's case, we want to digress a bit with this bit of Canadiana. Or at least our one story about that True North strong and free, that played into every one of our preconceptions.
Many years ago, while living in New York City, we got the bright idea one dark winter's night that the Quebec Winter Carnival was one of those things that we just couldn't miss. Only a few hours drive up the Northway it beckoned: snow, ice castles, Bonhomme, and poutine awaited.In case you need reminding, winters in that part of the world are cold. Like below zero cold. Much colder than our poor vehicle -- which was used to the more temperate climate of California and Hawaii -- could manage. Driving in excess of 30 mph on the said Northway resulted in the cold air shutting down (or more accurately, overpowering) the car's heating system. So we had a choice. Either drive very, very slowly to Quebec City (a 9+ hour drive even at the posted 55 mph speed limit) and stay reasonably warm, or drive normally with a car interior that was dangerously cold. We tried the hybrid, slowing down to allow the cabin to warm up, then driving very quickly until the freezing temps became unbearable. But that was no solution, and really wasn't going to get us anywhere near Quebec in a reasonable time.With daylight expiring, we opened the trunk, donned every hat, coat, and glove we had brought along, and resigned ourselves to getting to Quebec on time but ridiculously overdressed in a minus 20-degree car.It worked, and things were going just fine until we hit the US-Canada border and drove up to the Canadian Customs inspection booth. Pulling up, window down, only thing visible underneath all the winter clothing was our eyes. Customs officer was unfazed, and did not bat an eye."Purpose of your visit to Canada? (In his best Bob and Doug MacKenzie accent)"Quebec ... Winter Carnival.""Okay. Sounds like fun. Enjoy yourselves."[pause]"You know, you guys look like Eskimos, eh?"
Enough of that, back to our case. Bottom line is that the Ministry's offer for a partial taking for a highway project of the owners' property (shown above, which included the residence) was $358,000, and the eventual award Shane obtained was $1,842,000 plus interest and costs. Yes, we know the exchange rate is lousy right now (or good, if you are us). But that's still more than five times the offer, no matter the currency.
The balance of the decision is also worth a read, even if you never make it up that way. It details the legal standards for expropriation matters (much of which should be familiar to U.S. lawyers such as highest and best us, the before and after method, what is known as "injurious affection" (akin to severance damages plus loss of business and other property) and the like).
But there's one thing in Canadian law that won't be familiar to U.S. condemnation lawyers, as Shane explained to us earlier this year: the government is required to pay the property owners' attorneys fees if the final award is 85% of the government's offer of compensation. Yes, you read that right: you don't have to beat the expropriator's offer, just get at least 85% of it.
We think that last bit would be a great idea to import.