T-1312-76
Austin Pearse (sometimes known as Austin Lee
Pearse) (Plaintiff)
v.
The Queen (Defendant)
Trial Division, Mahoney J.—Ottawa, August 5,
1980.
Expropriation — Compensation — Practice — Application
by defendant to amend its defence in order to plead ss. 32 and
33(5) of the Expropriation Act — Application dismissed — It
is not appropriate to plead s. 32 in proceedings to determine
compensation under s. 29 — As to s. 33(5), the matter is res
judicata — A matter held not to be an appropriate subject-
matter for discovery cannot be held later to be an appropriate
subject-matter of pleading — Expropriation Act, R.S.C. (1st
Supp.). c. 16, ss. 32, 33(5).
APPLICATION.
COUNSEL:
P. Douglas Turner, Q.C. for plaintiff.
Paul J. Evraire for defendant.
SOLICITORS:
P. Douglas Turner, Q.C., Toronto, for
plaintiff.
Deputy Attorney General of Canada for
defendant.
The following are the reasons for order ren
dered in English by
MAHONEY J.: This action for compensation for
expropriated land was commenced August 9, 1974.
After consolidation with a second action, the
defence was filed March 5, 1976. Aside from a
change of solicitors by the plaintiff in June 1978,
nothing further happened on the record until, in
March 1980, the plaintiff sought to require re-
attendance of the defendant's officer for discovery
directed to the delay in the proceedings and the
defendant's intimation that it intended to ask the
Court to exercise its discretion under subsection
33(5) of the Expropriation Act, R.S.C. 1970 (1st
Supp.), c. 16 and to deprive the plaintiff of interest
to which he might otherwise be entitled. That
application was dismissed with reasons April 2,
1980.* The defendant now moves for leave to
amend the statement of defence by adding a para
graph pleading sections 32 and 33(5) of the Act.
Section 32 provides for the recovery by the
Crown of compensation paid pursuant to section
14 in excess of the amount adjudged to be payable.
It provides further that:
32. ... the excess constitutes a debt due to the Crown and
may be recovered by the Crown in any court of competent
jurisdiction.
It seems clear that section 32 contemplates a
separate proceeding, if necessary, to enforce the
liability to the Crown which may arise following
the determination of compensation under section
29. It is not appropriate to plead section 32 in
proceedings to determine compensation under
section 29.
As to subsection 33(5), the defendant is now
taking a position entirely contrary to that taken in
successfully opposing the plaintiff's motion for fur
ther discovery. As stated in the reasons then given:
If, when the compensation payable is finally determined,
interest is, in fact, payable to the plaintiff, it will be timely for
the Court and parties to consider representations germane to an
exercise of discretion under subsection 33(5) and, if necessary,
to provide for evidence in that behalf. It is not an appropriate
subject of examination for discovery.
That is res judicata in this action. The defendant
cannot have it both ways. A matter that has been
held not to be an appropriate subject-matter for
discovery can scarcely be held later to be an
appropriate subject-matter of pleading.
ORDER
The application is dismissed.
* [Reasons for order not reported, Court No. T-1312-76.]
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