DECISION  
NSUARB-EX-01-01  
2004 NSUARB 121  
NOVA SCOTIA UTILITY AND REVIEW BOARD  
IN THE MATTER OF THE EXPROPRIATION ACT  
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IN THE MATTER OF AN APPLICATION by HARRISON BLUEBERRY ENTERPRISES  
LIMITED to determine compensation to be paid by HER MAJESTY THE QUEEN in right  
of the Province of Nova Scotia in respect of the expropriation of land in Westchester,  
Cumberland County, Nova Scotia, for market value, for business loss, for injurious  
affection, and such other costs as the Board may deem just  
BEFORE:  
Wayne D. Cochrane, Q.C.  
COUNSEL:  
HARRISON BLUEBERRY ENTERPRISES LIMITED  
Dennis James, LL.B.  
Douglas A. Caldwell, Q.C.  
ATTORNEY GENERAL OF NOVA SCOTIA  
Stephen T. McGrath, LL.B.  
HEARING DATES:  
SUBMISSIONS:  
January 6 to 10, 2003; January 13 to 17, 2003; January 23,  
2003  
March 8, 2002; November 14, 2002; November 21, 2002;  
December 31, 2002; January 3, 2003; March 27, 2003; and  
March 31, 2003; March 5, 2004  
DECISION DATE:  
DECISION:  
December 16, 2004  
Compensation set at $49,900.  
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TABLE OF CONTENTS  
I
INTRODUCTION.................................................................................................. 6  
GENERAL ISSUES IN THIS PROCEEDING........................................................ 9  
II  
III  
WITNESSES ...................................................................................................... 19  
Witnesses for the Claimant ........................................................... 19  
John D. Sibley.......................................................... 19  
James C. Harrison................................................... 20  
Paul Gervason......................................................... 20  
S. Gerald Ryle ......................................................... 21  
Patricia A. Haylock................................................... 22  
Newton L. Sobey ..................................................... 23  
Brian E. Keough....................................................... 23  
Witnesses for the Respondent ...................................................... 24  
Fergus T. Omond..................................................... 24  
Robert R. Bieren...................................................... 24  
Dr. Leonard Eaton ................................................... 25  
Paul F. Bradley ........................................................ 25  
IV  
V
BACKGROUND.................................................................................................. 26  
LAND AREA ....................................................................................................... 51  
Areas of Various Parcels: Table.................................................... 60  
VI  
SALT SPRAY PROTECTION STRIP ................................................................. 61  
West Side of Right-of-Way............................................................ 88  
East Side of Right-of-Way............................................................. 91  
Incorrect Salt Spray Protection Areas as Calculated by Mr. Ryle . 93  
Even if there is no evidence of actual salt spray damage, has market  
value been reduced by salt spray?................................................ 94  
VII  
GOVERNMENT LAND ACCESS ROADS........................................................ 101  
Date of Opening of Government Land Access Road .................. 101  
Relative Steepness of the Government Land Access Roads...... 105  
Drainage Ditches on Sides of Government Land Access Road .. 110  
Surface Material.......................................................................... 112  
Gradient at Intersection Between Government Land Access Road and  
Westchester Road....................................................................... 123  
Maintenance: Duty ...................................................................... 128  
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Length of Access Road............................................................... 131  
Road Related Abandonment Claim............................................. 135  
VIII WEST BRANCH OF THE WALLACE RIVER AND CLAIMANT WOODS ROADS138  
Access Roads Needed for Western and Eastern Escarpments of the  
West Branch of the Wallace River............................................... 139  
The West Branch of the Wallace River ....................................... 144  
Width of the River .................................................. 144  
Heavy Vehicles Using Access Roads ......................................... 150  
Access from the East: Mr. Sobey ............................................... 152  
IX  
X
POUNDS PER ACRE....................................................................................... 152  
Average Yields in Pounds Per Acre for Properties of Claimant... 161  
Finding ........................................................................................ 175  
PRICE PER POUND OF BLUEBERRIES ........................................................ 177  
Broker=s Premium ...................................................................... 177  
Farm Gate Prices........................................................................ 182  
Finding: Farm Gate Price and Broker=s Price............................. 194  
XI  
VALUE OF LAND PER ACRE.......................................................................... 197  
Fergus T. Omond Appraisal........................................................ 197  
Keough Evidence Re Value of Land Per Acre............................. 201  
Bradley Evidence Re Value of Land Per Acre............................. 203  
Mr. Harrison Evidence Re Value of Land Per Acre ..................... 203  
Finding ........................................................................................ 203  
Ryle Evidence Re Value of Land Per Acre.................................. 209  
Claim by Mr. Ryle for ADiminution@ in Value (or AStigma@) of 9 Acres  
in Westchester II West ................................................................ 222  
XII  
IS SIX YEARS SUFFICIENT TO DEVELOP EACH ACRE OF NEW BLUEBERRY  
LAND?.............................................................................................................. 225  
Sibley Inspection of Property ...................................................... 225  
Finding ........................................................................................ 241  
XIII DISCOUNT RATE ............................................................................................ 246  
Bradley Evidence Re Discount Rate ........................................... 246  
Ryle Evidence Re Discount Rate ................................................ 251  
Keough Evidence Re Discount Rate........................................... 254  
Analysis....................................................................................... 261  
Finding ........................................................................................ 268  
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XIV PRODUCTION AND HARVESTING COSTS IN DEVELOPED BLUEBERRY FIELDS  
......................................................................................................................... 278  
XV  
ADDITIONAL TRANSPORTATION COSTS..................................................... 288  
Additional Costs of Trucking Hardwood, Logs, Studs and Pulp  
Because of Additional Travel Time Over Government Land Access  
Roads.......................................................................................... 288  
Snow Ploughing .......................................................................... 292  
Floating ....................................................................................... 293  
Speed on Woods Roads ............................................................. 298  
Ryle - Cost of Tractors ................................................................ 303  
XVI COSTS OF DEVELOPMENT OF PRODUCING BLUEBERRY LAND ............. 308  
Bradley Report Comments on Costs in Ryle Report ................... 308  
XVII BOARD CALCULATION OF DEEMED PROFIT PER ACRE OF BLUEBERRY LAND  
BASED UPON BOARD ESTIMATES OF YIELD PER ACRE........................... 312  
XVIII COMPENSATION FOR DISTURBANCE AND OCCUPATION OF CLAIMANT=S  
LANDS ............................................................................................................. 313  
XIX CLAIM FOR LOSSES IN RELATION TO CLAIMANT=S LEASEHOLD INTEREST IN  
BOGLE PROPERTY ........................................................................................ 318  
XX  
BRADLEY ANALYSIS OF RYLE CLAIMS........................................................ 331  
Excess Costs of Development and Operations........................... 331  
XXI AHOME BASE@................................................................................................ 332  
XXII SECURITY BUILDING ..................................................................................... 337  
XXIII REASONABLENESS OF EXTENT AND SPEED OF RYLE DEVELOPMENT PLAN  
......................................................................................................................... 346  
XXIV ACCESS FROM EASTERN END..................................................................... 361  
Western/Eastern Access and Speed of Development................. 361  
Development of New Lands Since 1995 ..................................... 373  
Development and Other Work by Claimant in Summer as Opposed to  
Winter.......................................................................................... 374  
Limited Timbering Experience of Jim Harrison............................ 380  
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XXV CREDIBILITY OF CLAIMANT=S EVIDENCE (RYLE REPORT AND TESTIMONY)  
......................................................................................................................... 381  
XXVI COMPENSATION FOR LOSS IN VALUE AND MARKET VALUE (THE ABEFORE  
AND AFTER@ ANALYSIS) ............................................................................... 394  
2002 Omond Report.................................................................... 398  
XXVII CLOSING ANALYSIS AND FINDINGS ............................................................ 406  
Statutory Interpretation and Expropriation Matters: Presumption in  
Favour of Compensation............................................................. 406  
Injurious Affection Damages in Excess of Land Values .............. 409  
Categorizing Losses: Issues of ADouble Recovery@........ 410  
Market Value and Income Approaches ............................ 415  
Income Approach........................................................................ 416  
Ryle Costs Excessive....................................................... 416  
Evidence from Various Experts and Lack of Appraiser .... 417  
Compensation for Value of Timber on Expropriated Land 433  
Crown Claim for Set-off Against Injurious Affection Compensation437  
ABefore and After@ Approach: Board Modification of Omond Analysis  
............................................................................................................... 441  
XXVIII SUMMARY OF MAJOR POINTS IN THIS DECISION .................................. 454  
Conclusion .................................................................................. 459  
Award of Compensation.............................................................. 460  
Matters to be Left for Subsequent Hearing ................................. 460  
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I
INTRODUCTION  
[1] Harrison Blueberry Enterprises Limited (@the claimant@) seeks compensation  
pursuant to the Expropriation Act for losses allegedly incurred as a result of the expropriation for  
the Cobequid Pass Toll Highway of 9.687 acres of land in a blueberry growing area in northwestern  
Nova Scotia, known as Westchester. The claimant=s Westchester property is one of a number of  
properties which the claimant owns, scattered widely around Cumberland County. The claimant=s  
Ahome farm@ (as it was described by one of the expert witnesses for the claimant) is located about  
40 miles to the west of the subject property, and is the place where all of the claimant=s storage  
facilities, office, and the home of the owner of the claimant, are located. The claimant has two  
properties in the Westchester area. Westchester I contains about 100 acres of land, of which about  
60 acres are developed in blueberries, which are of Alowbush,@ or wild, variety. Westchester II is  
located to the north and east of Westchester I, travelling along the Westchester Road. The Board has  
deemed Westchester II in this decision to contain 760 acres. Westchester II is long and narrow,  
having a frontage of about 1,158 feet (353 metres) on the Westchester Road, but extending perhaps 5  
kilometres to the northeast. Of the deemed 760 acres in Westchester II, only about 8 acres were  
being used for the growing of blueberries at the time of the expropriation. The 8 acres are at the  
extreme western end of Westchester II, abutting the Westchester Road. Somewhat to the south and  
east of the Westchester II property, the Westchester Road is intersected by the Webb Mountain  
Road, which runs in a northeasterly direction, very roughly parallel to the Westchester II property.  
The northeastern end of the Westchester II property (again, roughly 5 kilometres to the northeast of  
the Westchester Road, according to at least some of the evidence) is perhaps 1,000 feet, or a little  
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more, away from the Webb Mountain Road, separated from it by a property owned by persons other  
than the claimant, including property which has been developed into blueberry fields, and property  
which has remained as woodland. Except for the approximately 8 acres of blueberry field, a small  
amount of area taken up by a woods road owned by the claimant which forms the eastern boundary  
of that blueberry field, and a narrow area running along the eastern boundary of that road where  
some preliminary field development work had been done by the claimant, the Westchester II  
property is entirely wooded. In December of 1995, the Crown expropriated 9.687 acres from the  
Westchester II property, for the construction of the Cobequid Pass Highway. The right-of-way so  
expropriated cuts through the northwestern and southeastern boundaries of Westchester II (which  
form the sidelines of the property extending back from the Westchester Road) at right angles, and  
roughly parallels Westchester Road, which is less than 1,500 feet (440 metres) to the west of the  
right-of-way.  
[2]  
The Cobequid Pass Highway is limited access, and no direct access is  
permitted between the 24.8 acres which remain in Westchester II West (the area between the  
Westchester Road and the right-of-way), and the remainder of the 760-acre parcel to the east of the  
right-of-way. To provide access by the claimant and by other owners in the area, the Crown  
constructed government land access roads south of Westchester II, which lead from the Westchester  
Road under the Cobequid Pass Highway, thereby giving access to landowners with property located  
on the east side of the Cobequid Pass right-of-way. If a person wished to travel from Westchester II  
West to Westchester II East, the end result of the government=s decision to build government land  
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access roads south of the claimant=s property is that there would be an additional round trip of 11  
kilometres, on the government land access roads and the Westchester Road.  
[3]  
The appraiser for the Crown, Fergus T. Omond, AACI, initially recommended  
in 1996 a total compensation of $29,991, which included compensation for the 9.687 acres which  
were expropriated, and for injurious affection to the woodlands to the east of the right-of-way. In  
2002, Mr. Omond revised this recommendation to $52,278, to take account of the 11 kilometre  
round trip, which he had originally been told was somewhat shorter.  
[4]  
The principal witness for the claimant, S. Gerald Ryle, on the other hand,  
asserted that compensation approaching, or even exceeding, $800,000 was appropriate. He based  
this claim, in part, upon his projections of the alleged additional cost, arising from the right-of-way  
crossing the property, of timbering the property to the east of the right-of-way, and of developing  
400 acres of blueberry lands in that area. Included in Mr. Ryle=s analysis as well is a claim arising  
from losses allegedly occurring to the claimant because of the expropriation of .5 acres of blueberry  
land belonging to a neighbour, which were, until the time of the expropriation, leased by the  
claimant. Included as well was his calculation of compensation for Asalt spray protection strips,@  
the necessity for which was accepted by Mr. Omond as part of his analysis. Mr. Ryle=s figure of  
more than $800,000 excludes any claims for compensation relating to management (compliance)  
time, interest costs, and compensable tax implications, if any, which are not the subject of the  
present decision.  
[5]  
At the conclusion of the hearing, Counsel for the claimant reduced the Ryle  
figure to a little over $500,000.  
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[6]  
For reasons discussed below, the Board largely accepts Mr. Omond=s analysis  
(although it rejects compensation in relation to the Asalt spray protection strips@), and rejects the  
losses claimed in the Ryle Report, including those related to the alleged real property values, as well  
as losses related to, in general, the income approach. In particular, the Board found key components  
of the Ryle analysis relating to losses arising from delays in development, and such things as  
additional expenses in developing the property, rendered the Ryle analysis, as a whole, unsafe to rely  
upon.  
[7]  
Using, in essence, the Omond model, the Board fixes compensation at  
$49,902.  
II  
GENERAL ISSUES IN THIS PROCEEDING  
[8] In this decision, the Board has accepted that there is a reduction in market  
value, or injurious affection, of property to the east of the right-of-way, and that the claimant should  
be compensated for that reduction, in addition to being compensated for the loss of the land which  
was expropriated.  
[9]  
The Board has rejected any claim for loss arising from the expropriation of .5  
acres of the leased Bogle property, finding that the claimant failed, on the balance of probabilities, to  
establish any loss in relation to that expropriation.  
[10] The Board rejects the claimant=s assertion that salt spray protection strips  
along the sides of the right-of-way are automatically necessary for a highway of this type, and finds,  
instead, that the need for such strips is entirely dependent upon the circumstances of a particular  
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case. In the circumstances of the present case, the Board has rejected any compensation for alleged  
salt spray losses.  
[11] With respect to the market value of the different types of property under  
consideration, the Board accepted the market values recommended by Mr. Omond, the only  
accredited appraiser to testify before the Board. These were: $400 per acre for woodland without  
blueberry potential; $900 per acre for woodland with blueberry potential, and $2,500 per acre for  
fully developed blueberry land. Mr. Omond reduced these values for any property located on the  
east of the Cobequid Pass right-of-way (i.e., on the side away from Westchester II West) by 15%; he  
further reduced the market value of the woodland on the east side of the West Branch of the Wallace  
River.  
[12] The claimant asserted that the government land access roads (which the  
claimant declines to use, but which are being used by other property owners in the area) were so  
inadequate as to entirely deprive the claimant of access to Westchester II East, or to so impair its  
access as to cause the claimant large losses (the nature of which was elaborated at length in Mr.  
Ryle=s report). The Board, with one exception, rejected these assertions; the one exception relates  
to the grade of the government land access road as it intersects the Westchester Road which did not,  
in the Board=s view, amount to the impediment to access asserted by the claimant and, in particular,  
presented no impediment to access outside the winter months, and not necessarily even during those  
months. Moreover, the Board found that the access roads and river crossing which the claimant  
proposed to build, and which were an essential part of the development, would present even greater  
challenges in similar weather conditions. With the above-noted exception, the Board found that the  
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government land access roads are adequate for the purposes to which a reasonable person in the  
place of the claimant would want to put them.  
[13] The Board finds that there is insufficient evidence, on the balance of  
probabilities, for it to accept the claimant=s assertion of particular losses arising from such things as  
delayed development and lost profits in Westchester II East arising from the government land access  
roads. Even where revised by such persons as Mr. Keough (upon whom the Board places  
considerable reliance), the claimant=s evidence in relation to these claims is in large part based upon  
assumptions and assertions of fact contained in the evidence, oral and written, of Mr. Ryle. Key  
parts of that evidence can, the Board reluctantly concludes, be fairly characterized as mere assertions  
unsupported by the evidence, or otherwise inconsistent with the preponderance of the evidence  
before the Board.  
[14] The Board finds that there is, within Westchester II East (i.e., the lands to the  
east of the right-of-way), woodland with blueberry potential. It, however, finds that there is  
insufficient evidence for the Board to accept, on the balance of probabilities, a key assumption of the  
claimant=s case (as advanced by Mr. Ryle) that development of woodland with blueberry potential  
in Westchester II East, and subsequent production and harvesting activities on any such lands, would  
occur, and be accessed, from the Westchester II West property, and only from there. In the view of  
the Board, that assumption ignores two things: the presence of the West Branch of the Wallace  
River, with its long and extremely steep slopes (or Aescarpments@) on either side, near the western  
end of Westchester II; and the possibility (which the claimant left entirely unexplored) of relatively  
easier and safer access from the east, via the Webb Mountain Road, which would not involve the  
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government land access roads at all. The Board sees the burden of proof resting upon the claimant  
with respect to the latter point as being a relatively light one, but it was one which the claimant  
chose to entirely ignore.  
[15] With respect to the first item, the steepness of the escarpments on either side  
of the West Branch of the Wallace River is much in excess of the grades on the government land  
access roads which were complained of by Mr. Ryle. Crossing the river would require construction  
of roads on each escarpment, which will have to, because of the steepness of the escarpments, run  
diagonally on each escarpment, and which would be .4 kilometres and .7 kilometres (respectively) in  
length. The road on the western escarpment, in particular, would be at the limit for the construction  
of such a road. At the point of intersection at the river of the roads on the western and eastern  
escarpments, there will have to be constructed a river crossing. The claimant failed to provide any  
costing information at all for the proposed construction of these roads or crossings, although Mr.  
Ryle testified that design of the crossing alone could cost $5,000, or more.  
[16] With respect to a reasonable figure for the average yield in pounds per acre  
for the blueberry properties which the claimant proposed to develop in Westchester II East, Mr. Ryle  
asserted that a figure of 4,000 pounds per acre should apply, a yield which had been achieved by  
only one of the claimant=s properties (and that, a relatively small 8 acre field) and in only one year;  
whether in the period 1990 to 1995, 1996 to 2000, or 1990 to 2000, the claimant=s average yield per  
acre for its blueberry properties in Cumberland County, where the subject property is located, did  
not exceed 1,750 pounds per acre. The Board fixed a reasonable average yield per acre, in alternate  
years, for any property developed by the claimant at 2,500 pounds per acre. Mr. Ryle asserted that  
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4,000 pounds of blueberries per acre would be produced on average (in alternate years) by each of  
the 400 new acres which his plan called for, six years after each acre was cleared. The Board  
rejected this as being inconsistent with the preponderance of the evidence, and adopted a figure of 15  
years from the date that development commenced of a particular acre, with an average yield of 2,500  
pounds per acre. For Years 7 to 10, it set an average rate of production per acre at 1,000 per acre;  
for Years 11 to 14, 1,750 pounds per acre, and for Year 15 and beyond, 2,500 pounds per acre.  
[17] With respect to the price per pound of blueberries, Mr. Ryle=s report set a  
Afarm gate@ (or grower=s price) price of 75 cents per pound, a price which according to the  
evidence upon which the Board has relied has never once been reached in any year in Nova Scotia.  
The Board fixed the price per pound for blueberries to be applied for any claim that the claimant  
might have at 60 cents per pound (52 cents per pound for the grower=s price, or farm gate price, and  
8 cents per pound as the broker=s price).  
[18] Beyond the items just summarized, there were a large number of issues which  
arose, explicitly or implicitly, in submissions in or in oral evidence. Not all of these were  
necessarily pursued by the parties, and, given the view which the Board has ultimately taken of the  
facts and law in this matter, it is not necessary for the Board to resolved all of them. The issues  
raised included the following:  
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Development Plan  
Income Analysis  
What profit per acre can reasonably be expected from newly developed blueberry lands, and when?  
What is the cost of clearing timber from woodland with blueberry potential?  
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What is the cost of development of land with blueberry potential which has been cleared of timber?  
What additional cost, if any, is imposed by the presence of the Cobequid Pass right-of-way between  
Westchester II West and Westchester II East, with respect to timbering and development of  
blueberry lands?  
a.  
b.  
was Westchester II East at the time of the expropriation entirely wooded?  
was there a development plan for Westchester II East to harvest timber and to create  
blueberry fields?  
c.  
d.  
if so, when would it have begun?  
if so, how long would it have taken, given:  
I.  
the nature of the task (including road building, crossing construction,  
timbering and development of blueberry land);  
ii.  
iii.  
period of time the Board should deem reasonable for the development of land  
from merely blueberry potential to full production;  
the resources of the claimant.  
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How much of Westchester II should be considered to have as its highest and best use the  
growing of blueberries?  
Land value per acre.  
a.  
b.  
should the Board value the claimant=s property using standard appraisal approaches,  
such as those used by Mr. Omond, or should it value the claimant=s property using  
the Aincremental@ approach advocated by Mr. Ryle, an agrologist retained on behalf  
of the claimant?  
what value should the Board attribute to land which has been developed and is  
producing blueberries?  
c.  
d.  
what value should the Board attribute to land which has blueberry potential?  
what value should the Board attribute to woodland without blueberry potential?  
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e.  
f.  
by what percentage, if any, should the Board reduce the value of the claimant=s  
property located to the east of the right-of-way, by reason of the alleged difficulty, or  
even impossibility of access, through the government land access roads?  
by what percentage, if any, should the Board reduce the value of the claimant=s land  
which is located to the east of the West Branch of the Wallace River, by reason of  
the difficulties in access created by that natural obstruction?  
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Salt spray protection strips  
a.  
b.  
c.  
d.  
should the Board deem that strips of land on either side of the expropriated right-of-  
way, are no longer usable for blueberry growing?  
if so, how big should those strips be and what compensation should be paid for  
them?  
whether or not the Board considers such strips are reasonably necessary, what  
reduction in market value, if any, should be attributed to such strips?  
should the Board consider that salt spray leads to a Adiminution@ of value even for  
property which lies outside the areas allegedly needed for salt spray protection, as  
advocated by Mr. Ryle?  
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What net revenue (if any) should be attributed to timber standing on Westchester II East?  
Where is the claimant=s Ahome base,@ and what are the implications, in any, of the answer  
to this question for other parts of the claimant=s claimed compensation, such as the alleged  
need for the construction of a security building, daily round trip travel distances and times to  
fields in Westchester II East, etc.?  
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Government land access road  
a.  
b.  
c.  
when did the claimant lose access from Westchester II West to Westchester II East  
because of the expropriation?  
how valid are the claimant=s assertions that the government land access roads have  
not restored satisfactory access to Westchester II East from Westchester II West?  
were the grades of the government land access roads (apart from the grade  
approaching the Westchester Road intersection, dealt with below) adequate for the  
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purposes to which a reasonable person in the place of the claimant would want to put  
it?  
d.  
e.  
f.  
was the drainage of the government land access road adequate for the purposes to  
which a reasonable person in the place of the claimant would want to put it?  
was the quality of the surface adequate for the purposes to which a reasonable person  
in the place of the claimant would want to put it?  
accepting that the grade of the government land access road at the point where it  
intersects the Westchester Road was steeper than slopes called for in standards such  
as the TAC, was it adequate for the purposes to which a reasonable person in the  
place of the claimant would want to put it?  
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Jim Harrison, the principal of the corporate claimant, acknowledges that development of  
Westchester II East would require the construction of a number of kilometres of woods  
roads. Further, to access the bulk of the lands of Westchester II East from the west, the  
claimant would have to build a crossing over the West Branch of the Wallace River, located  
at the bottom of a steep gorge. The claimant has provided no information with respect to the  
length of such access roads, the cost of constructing them, or the cost of building a crossing  
over the West Branch of the Wallace River. What weight should the Board give the  
claimant=s failure to produce estimates?  
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What weight, if any, should be attached to the claimant=s failure to adduce any evidence at  
all in relation to the possibility of obtaining access to Westchester II East from its east (via a  
right-of-way or road) to the Webb Mountain Road?  
Blueberry yields per acre: taking into account the claimant=s own yield for its fields in the  
Westchester area, and of its own and other properties elsewhere in Cumberland County,  
provincial averages, and the wide variations in yields which can arise from such factors as  
weather, topography, blueberry plant species, and soil conditions, what average yield (in  
pounds per acre) should be deemed to be a reasonable rate of production per two year cycle  
for blueberry fields in Westchester II West or Westchester II East, if these were to be  
developed?  
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The claimant is not simply a grower of blueberries, but is also a broker, meaning that the  
claimant receives a premium for its own berries and those of others. What price per pound  
should be deemed in the present proceeding? More specifically:  
a.  
what farm gate, or grower=s, price per pound for blueberries should be deemed to  
apply?  
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b.  
what broker=s premium, payable to the claimant as a broker/buyer rather than simply  
a grower, should be deemed to apply?  
-
-
-
What discount rate should be applied to the claim?  
a. should a different discount rate be applied to different aspects of the claim?  
What loss, if any, should be attributed to the expropriation of part of the Bogle land, from  
which the claimant had been harvesting blueberries under a leasehold for which no written  
lease existed?  
What weight, if any should be attached to the establishment by Jim Harrison, the principal of  
the corporate claimant, in 1998, of a second company, J.C. Harrison Limited, which is  
engaged in business similar to that of the claimant, such as land acquisition, development of  
blueberry lands, and growing of blueberries?  
-
-
What is the effect, if any, of the claimant having developed and improved significant  
amounts of its lands other than Westchester II in the period between 1995 and the date of the  
hearing, given that Jim Harrison agreed that at least some of this development might not  
have been done if the corporate claimant had embarked upon development of Westchester II  
East (the lands to the east of the right-of-way)?  
What is the effect, if any, of the claimant having expanded, since the date of expropriation,  
its custom work operations in which it provides agricultural services to third parties?  
III  
WITNESSES  
Witnesses for the Claimant  
John D. Sibley  
[19] John D. Sibley, an agrologist, and former employee of the Department of  
Agriculture, gave evidence on wild blueberry production. Retired from the Department of  
Agriculture and Marketing in 1994, he currently has a part-time position with the Wild Blueberry  
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Association of North America, as its Canadian Assistant Director. The Canadian office of the Wild  
Blueberry Association of North America is located in Mr. Sibley=s home. His duties involve  
promotion of the wild blueberry industry, and working with provincial and federal governments to  
secure funding. He said the Canadian organization is made up of Canadian processors and some  
Canadian growers, with the bulk of wild blueberry production being in Maine and in the Atlantic  
provinces and Quebec. Like Paul Gervason, he was consulted by Mr. Ryle in the preparation of Mr.  
Ryle=s report. Also, like Mr. Gervason, Mr. Sibley did not file a separate report with the Board.  
Further, while he is referred to at page 6 of the Ryle Report as having provided advice as to the  
proportion of potential blueberry land on the subject property, he is not otherwise identified in the  
report as the source of any of the opinions expressed therein by Mr. Ryle, nor were any other  
contributions he made to Mr. Ryle=s report identified as such within the Ryle Report. Mr. Sibley  
gave oral evidence at the hearing on wild blueberry production generally, including his opinions  
with respect to the price per pound for blueberries, and the yields per acre for blueberry lands. Mr.  
Sibley also gave oral evidence as to his opinion respecting the suitability of Westchester II East for  
development as blueberry producing lands. Mr. Sibley was identified by Mr. Ryle in his evidence as  
a person upon whom Mr. Ryle relied in relation to the alleged necessity for salt spray protection  
strips; Mr. Sibley, however, in his evidence, denied any expertise about this subject (a position in  
which Mr. Sibley was supported by counsel for the Claimant), and denied providing any information  
on the subject to Mr. Ryle.  
James C. Harrison  
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[20] James C. Harrison is the beneficial owner of the corporate claimant, as well as  
of a second company engaged in similar activity, which he established in 1998, three years after the  
expropriation, which is the subject of this proceeding.  
Paul Gervason  
[21] Paul Gervason is a registered agrologist who was consulted by Gerald Ryle in  
the production of Mr. Ryle=s report, and was involved in Re Johnson, [2003] N.S.U.R.B.D. No.  
140 (Q.L.), 2003 NSUARB 154, and in Re Williams, [1996] N.S.J. 254. Mr. Gervason did not, in  
the present case, file a separate expert=s report with the Board, and no contributions he made to Mr.  
Ryle=s report were identified as such within the Ryle Report. He was qualified to give expert  
evidence with respect to the principles and practices of agriculture, including assessment of loss or  
damage to farm operations through loss or severance of land or injurious affection through  
expropriation; valuation of business losses from injury to farm operations through loss or  
impairment of access; all aspects of farm economics, including farm management and accounting;  
and numerical analysis, including the application of discount rates to future loss. With Mr. Ryle,  
Mr. Gervason wrote, some years ago, a guide entitled AFarm Business Expropriations in Nova  
Scotia,@ the publication of which was sponsored under a government agricultural program. He is  
not a specialist in blueberry production, his first working experience in relation to blueberries  
occurring with the Johnson expropriation.  
S. Gerald Ryle  
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[22] S. Gerald Ryle is an agrologist, who has previously given evidence before the  
Board in three cases: Williams, Re Coldwell, [1998] N.S.U.R.B.D. No. 87 (Q.L.), 1998 NSUARB  
87; and Johnson. He produced a report in January of 2001, with written revisions being submitted  
in January 2003 at the time of the hearing. Mr. Ryle has had a long association with Mr. Gervason  
and Mr. Sibley, with whom he consulted in the production of his report. He gave oral and written  
evidence with respect to his views as to the losses allegedly sustained by the claimant as a result of  
the expropriation, expressing opinions on essentially all of the issues involved in the Harrison claim.  
These included his opinions with respect to the effect of salt spray upon blueberry production, the  
alleged necessity of salt spray protection strips next to the Cobequid Pass Highway, the pounds per  
acre of blueberries likely to be obtained, the price per pound of blueberries, engineering issues such  
as road design, construction and maintenance, additional costs allegedly caused to the claimant by  
the government land access roads, and valuation of the various types of properties involved in the  
expropriation.  
[23] The claimant in this proceeding called no qualified appraiser to give evidence  
with respect to market value of the real property C unlike, for example, in Williams, in which  
Arthur Speed, AACI, was called (and in which Mr. Ryle also participated). In the present case,  
while Mr. Ryle said that his team spoke with Mr. Speed, and Mr. Speed visited the property and  
discussed values, it seems that Mr. Speed was not, thereafter, retained on behalf of the claimant. No  
report from Mr. Speed, or from any other appraiser, was filed with the Board on behalf of the  
claimant.  
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Patricia A. Haylock  
[24] Patricia A. Haylock is a qualified forest technician experienced in  
interpretation of aerial photography and forest cover maps. She provided both written and oral  
evidence, including reference to the types of wood growing in Westchester II, as well as the likely  
revenue and some of the costs involved in timbering operations. She was qualified to give expert  
opinions on the valuation of wood fibre and methods and costs related to the extraction of timber and  
the development of woodlands. She testified on behalf of the claimant in Johnson as well; in  
Johnson, however, Mr. Ryle asked her to produce certain kinds of costing information which he did  
not ask her to produce in the present proceeding.  
Newton L. Sobey  
[25] Newton L. Sobey, a professional engineer, gave evidence with respect to the  
government land access roads built by the government as part of the Cobequid Pass Highway project  
and with respect to the proposed construction of a private access road over Westchester II East,  
including a crossing of the West Branch of the Wallace River. He was asked to give an opinion as to  
feasibility of crossing the river, but was not asked to develop even a rough estimate of the costs of  
such a crossing, the costs of road construction on the high, very steep escarpments on either side of  
the river, or any plans, whether preliminary or otherwise.  
Brian E. Keough  
[26] Brian E. Keough is a chartered business valuator, certified management  
consultant, and chartered accountant whose evidence included loss quantification in relation to the  
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present proceeding and determination of an appropriate discount rate. His only previous experience  
with the blueberry industry was when he was called as a witness in relation to appropriate discount  
rates in Johnson. However, he has testified in various other expropriation cases which were referred  
to in the course of his being qualified, including several cases in Nova Scotia: Nova Scotia  
(Attorney General) v. Parker's Country Market Inc., [1996] N.S.J. 196).  
Witnesses for the Respondent  
Fergus T. Omond  
[27] Involved in real estate appraising for more than 30 years, Fergus T. Omond is  
an accredited member (AACI) of the Appraisal Institute of Canada and an accredited member of the  
American Appraisal Institute (SRPA, or Senior Real Property Appraiser) in the United States. Chair  
or vice chair of committees of the appraisal institutes, national or provincial bodies (including  
professional practice, adjudicating, education and professional development), he has been certified  
as a lecturer in appraising by the Appraisal Institute of Canada since 1996. He had no, or at the  
most, very limited experience in relation to the valuation of blueberry lands prior to this case. He  
has given expert evidence on appraisal matters before various tribunals, including the Nova Scotia  
Regional Assessment Appeal Court (R.A.A.C.), the Nova Scotia Municipal Board, the Expropriation  
Board, Supreme Court of Nova Scotia, the Nova Scotia Utility and Review Board, and the  
Government of Canada Taxation Court. Mr. Omond was the only person with formal qualifications  
as an appraiser who gave evidence on behalf of either party. He testified with respect to the market  
value of the expropriated lands and of injurious affection to the remaining lands.  
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Robert R. Bieren  
[28] Robert R. Bieren, a professional engineer with the Department of  
Transportation and Public Works (ATPW@), gave evidence on the government land access roads and  
the proposed private access road over Westchester II East, including a crossing of the West Branch  
of the Wallace River.  
Dr. Leonard Eaton  
[29] A consultant to the blueberry industry, a professor at the Nova Scotia  
Agricultural College, and the former head of the Department of Biology at that college, Dr. Leonard  
Eaton=s Ph.D. thesis was focussed on blueberries. His 27-page curriculum vitae contains seven  
pages of research activities, almost all of which relate to blueberries, including such things as  
pollination, fertilizers, assessment of blueberry Aclones@ or plants, how to speed the recovery of  
blueberry plants after land levelling (which involves discing and rolling to make land sufficiently  
level for mechanical harvesting), and the effects of snow fences on winter kill, as well as the effects  
of highway deicing salt on blueberries. Dr. Eaton was the only person who testified at the hearing  
who had carried out research, including actual experimentation both in the area of the subject  
property, and elsewhere in the province, upon the effect of highway deicing salt upon blueberry  
plants. Dr. Eaton=s qualifications are explored in further detail elsewhere in this decision.  
Paul F. Bradley  
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[30] Paul F. Bradley is a chartered accountant who is a designated specialist in  
investigative and forensic accounting and, like Mr. Keough, also a chartered business evaluator.  
Also like Mr. Keough, Mr. Bradley gave evidence as to his opinion of appropriate discount rates to  
apply in the present proceeding. He also prepared detailed tables which showed the effect upon the  
Ryle Report of changing the general discount rate from 2.5% to 15%, and of cutting the profit per  
acre from $950 per year (the figure claimed by Mr. Ryle) to about $260 per year, the figure Mr.  
Bradley considered to be more appropriate. He did a similar analysis in relation to the Ryle  
Report=s calculation of loss in relation to the leased Bogle lands. Like Mr. Keough, Mr. Bradley  
gave written and oral evidence in Johnson.  
IV  
BACKGROUND  
[31] Beginning in the late 1940's, Raymond Harrison, the father of Jim Harrison,  
the principal of the corporate claimant, began assembling lands throughout Cumberland County for  
blueberry growing. In the late 1960's, the subject property was acquired and, it seems by 1981,  
blueberries (on at most 8 acres of fields) were being grown in Westchester II West.  
[32] In addition to the various land holdings actually owned by Harrison  
Blueberry, Raymond Harrison leased blueberry lands. A specific leasehold which is of interest to  
this proceeding is that of the Bogle property, which is adjacent to the subject property. It was  
originally leased by Raymond Harrison from the mother of the present owner, who lives in the  
United States. It appears from the evidence that the only access road to the Bogle field is a road on  
the claimant=s Westchester II West property. There is no written lease for the property, the lease  
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can be terminated by Mrs. Bogle at any time, and neither the claimant, nor Mr. Harrison, nor any  
other company associated with him, has an option of a right of first refusal over the property.  
[33] Around 1981, Raymond Harrison incorporated Harrison Blueberry  
Enterprises Limited (the claimant), with the subject lands being transferred into the company around  
1984. It seems Jim Harrison (the present beneficial owner of the corporate claimant, Harrison  
Blueberry Enterprises Limited) and his brother John Harrison were involved in the formation of  
Harrison Blueberry Enterprises Limited. Nevertheless, Raymond Harrison remained in control of  
the company until Jim Harrison replaced him in 1995.  
[34] Jim Harrison finished grade 11 around 1974 in Parrsboro, and then took a two  
year commercial art course in Truro, after which he worked for about a year and a half as an air  
photo technician. After working for a summer for his father in his blueberry operations, he left  
around 1977 to work in the mining industry in the Northwest Territories, where he remained for  
about two years. He returned to Nova Scotia in 1979 to work in a mine, where his work included the  
operation of heavy equipment. When the mine closed after about two years, i.e., around 1981, Jim  
Harrison once again helped his father with harvesting and other day-to-day work before returning to  
the Northwest Territories later in 1981. He worked there until around 1984, when he returned to  
Nova Scotia to work on offshore drilling rigs. While shares in the company were transferred around  
1984 to Raymond Harrison=s sons (Jim and John, the latter no longer being involved), control  
remained in the hands of Raymond Harrison. Jim Harrison worked offshore for about two years on a  
three week on/three week off basis, spending his off time working for his father=s blueberry  
operation, doing fertilizing, spraying, and harvesting. Upon leaving the offshore work, Jim Harrison  
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returned to the Northwest Territories for about three more years, working with heavy equipment,  
including trucks, bulldozers, and excavators, returning to Nova Scotia for good around 1990 to work  
for a metal works, driving a tractor trailer, and for his father. He continued working for the metal  
works for about two years. He returned to work for his father on a seasonal basis around 1992 (three  
years before the expropriation), and has remained since, working on day-to-day operations from  
1992 until (and after) the expropriation at the end of 1995. In the period of 1992 to 1995, Jim  
Harrison had some authority over other employees and over managing of field work and the  
receiving station which his father had at that time.  
[35] 1994 was the last full year in which Raymond Harrison had effective control  
of the blueberry operation. At one point in his evidence, Jim Harrison alluded to his father having  
done work around that time in the area which, ultimately, lay between the Westchester Road and the  
right-of-way. The Board considers that there is insufficient evidence, on the balance of  
probabilities, to support a finding by it that there was any significant activity in 1994 (apart from  
some minor preliminary work being done along the eastern edge of the private access road which  
had existed for many years over Westchester II West, and which leads ultimately to the Bogle  
property) of this type in Westchester II West by the senior Mr. Harrison.  
[36] Harrison Blueberry had been in arrears with the Farm Loan Board for about  
seven years. Raymond Harrison=s financial difficulties with the Farm Loan Board and the Bank of  
Nova Scotia finally came to a head, and, in 1995, Jim Harrison took full control of Harrison  
Blueberry from his father. The evidence as to just when this happened in 1995 is not entirely clear.  
Even submissions of counsel for the claimant on this point seemed to be somewhat inconsistent, with  
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counsel for the claimant asserting in the course of cross-examination of Mr. Omond that Jim  
Harrison had taken control in late 1995, with post-hearing submissions saying that he took control in  
late 1994 or early 1995. The Board finds that Jim Harrison had full control of the claimant by the  
end of 1995, when his financing efforts succeeded in December of that year. Foreclosure was being  
considered when Jim Harrison approached the Bank of Nova Scotia and Farm Credit Corporation.  
As part of his refinancing efforts, Jim Harrison talked with Cheryl Archibald of Farm Credit  
Corporation, inviting her to come out and view their operations, taking her around to the various  
properties and showing her the new receiving station at Southampton. Construction of this began in  
1994 and was completed in 1995; it appears Jim Harrison, while not in control of the company at the  
time of the commencement of the construction of the receiving station, was at least influential in its  
being constructed. He said he discussed his plans for the future with her for all of the lands owned  
by the claimant which had potential for development, the biggest acreage of which (and the only one  
with available wood fibre) was the Westchester II property. Mr. Harrison=s plans for the future, as  
discussed with Ms. Archibald, were not reduced to writing, and no other documentary evidence in  
relation to them was supplied to the Board, nor did Ms. Archibald testify.  
[37] At the time of the expropriation, according to various sources of information  
within the evidence, the claimant had at least 10 properties (the locations of some of which are  
shown in the area map forming part of Mr. Omond=s report) scattered around Cumberland County,  
including (in addition to the Westchester II property): the home farm (where Jim Harrison lives,  
keeps his equipment, and has his blueberry receiving station) of 500 acres at Southampton (located  
about 40 miles to the west of the subject property as the crow flies, and transferred into Harrison  
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Blueberry in 1995 as part of the negotiations with Farm Credit); 100 acres at Westbrook, just south  
of Southampton; 200 acres in East Mapleton, to the east of Southampton; 100 acres at Oxford; 30  
acres at Windham Hill, east of Springhill; 100 acres at Westchester I (on the west side of  
Westchester Road and little to the south of the subject property), 40 acres at Trumanville, northeast  
of Amherst; and Mount Pleasant (north of Oxford). In his evidence, Mr. Harrison said that Mount  
Pleasant has Abig acreages.@ It, as well as Trumanville, are about as far away from Southampton  
and its receiving station as is Westchester I and II.  
[38] The properties owned by the claimant (and also the properties owned by its  
corporate sibling, J.C. Harrison Limited, for which relatively little evidence of holdings appears in  
the evidence in the present matter), cannot, in the view of the Board, all be identified (even by name,  
much less by acreage and production) with certainty or completeness. In part, this may be because  
differing names (or at least variations of them), may have been used for the same properties, and also  
because some properties appeared to have been referred to only once in the documentation and then  
not elsewhere. To briefly illustrate, without in any way intending to be comprehensive, the Ryle  
report refers to AEast Mapleton@ which is not a property name appearing in Exhibit H-37 (a  
document provided by the claimant=s counsel to the Crown in the fall of 2002, and containing  
information on production and purchases for various of the properties of Harrison Blueberry from  
1990 to 2002). Exhibit H-37 does, however, contain a reference to AMapleton@ in 1996, while in  
1994, a reference to AMapleton (Lynn Mtn),@ appears; in 1998, there is a reference to ALynn  
Mountain,@ with the word AMapleton@ not appearing at all. As a further example, Exhibit H-37  
refers to a property called AThundering Hill@ as having yielded 33,552 pounds of berries in 1996; no  
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reference appears to have been made to this particular property in the Ryle Report or indeed in the  
oral evidence given in the course of the hearing.  
[39] In addition to the properties which are owned by the claimant, the claimant  
also leases properties from which it harvests blueberries. Exhibit H-37, for example, lists in the  
years 2000 and 2002 a property identified only as ACanton Lease Field,@ from which, respectively,  
1.5 tons and 11.3 tons of wild blueberries are stated to have been harvested by the claimant.  
[40] In addition to the properties mentioned above which are owned or leased by  
Harrison Blueberry, Jim Harrison, the beneficial owner of Harrison Blueberry, also controls J.C.  
Harrison Limited, which he formed in 1998. Since that time, this second company has engaged in  
business activities and acquired assets which are similar to those of the claimant, including the  
development of blueberry properties (which may be in the order of 200 to 250 acres in various stages  
of production). Some of the evidence points to Harrison Blueberry Limited being wholly owned by  
Jim Harrison, while counsel for the respondent Crown states in closing briefs that J. C. Harrison  
Limited holds the preferred shares of Harrison Blueberry Limited and, in effect, all of its real value.  
In either event, Jim Harrison, on the evidence before the Board, is the beneficial owner, directly or  
indirectly, of both companies. Counsel for the respondent Crown suggests (paragraph 151 closing  
arguments) that development of new fields by the new company, J.C. Harrison Limited, meant a lost  
corporate opportunity for the first company, the claimant in this proceeding, and that this amounts to  
a breach in fiduciary duty by Jim Harrison:  
. . . Mr. Harrison, pursuant to his fiduciary duty as an officer and director of Harrison, was  
obligated to act in the best interest of Harrison, but choose to develop these lands in a new  
company. By incorporating a new company to undertake this activity, Mr. Harrison breached  
his fiduciary duty to Harrison. Second, given the fact that the new company was incorporated  
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after the expropriation and is also developing blueberry land, it smacks of an attempt to shield  
this new activity from review so as to not interfere with the expropriation claim.  
[41] The Department of Transportation appears to have decided before the end of  
January 1995 that it would acquire, by purchase or expropriation, the lands which it eventually  
expropriated from the claimant. While there was public discussion of the proposed highway earlier,  
it was not until the summer or fall of 1995, according to Jim Harrison, that he learned the Crown  
intended to expropriate some of the claimant=s land at Westchester II for the right-of-way for the  
new highway. Mr. Harrison, in his oral evidence, seemed uncertain as to whether his discussions  
with Ms. Archibald (which concluded in the claimant=s mortgaging of the property in December of  
1995) were underway when he learned that a portion of Westchester II was to be expropriated.  
[42] In showing her the new receiving station at Southampton which was under  
construction at the time, Jim Harrison said that the receiving station which had been used by the  
claimant was one personally owned by his father, Raymond Harrison; Jim Harrison said that he  
obtained government assistance and financing for the construction of the new receiving station,  
which, when eventually completed, had outside dimensions of 60 feet by 100 feet, and inside  
dimensions of 40 feet by 100 feet, including a full-length loading dock, two offices, a washroom,  
and storage facilities, but not including a freezer facility. According to Mr. Harrison, the new  
building was usable by the fall of 1995. Other facilities at Southampton include vehicle and  
equipment storage, maintenance, and an office. The Board notes that Mr. Ryle=s report says that the  
claimant:  
. . . has the capability to store grade and pack the potential production of these lands and  
bring them to the market when and where he chooses. [p. 10]  
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To the extent that this statement in Mr. Ryle=s report implies that the Harrison receiving  
station has a freezing capability, which would permit the claimant to hold berries for  
shipment A. . . when and where he chooses@ to a processor at the most opportune time,  
the balance of the evidence before the Board is not consistent which such a claim. If Mr.  
Harrison were to rent a freezing capability, as he indicated some of his competitors have  
done, he would be able to keep blueberries longer than the usual two or three days in his  
receiving station; his evidence, however, is that he typically holds on to the product for two  
to three days only. Counsel for the Crown suggests the reasonable interpretation of Mr.  
Ryle=s assertion is that the capability of freezing product is one which the claimant has:  
. . . It would not be notable otherwise since anybody would have the capacity to hire out for  
these services.  
Counsel for the respondent Crown suggested that Mr. Ryle=s claim casts doubt upon his  
credibility. This was an assertion made by counsel for the Crown in relation to a number of  
parts of Mr. Ryle=s evidence. In most instances, the Board, having heard Mr. Ryle=s  
testimony, and reflected subsequently upon the evidence as a whole, agrees.  
[43] Jim Harrison was successful in his efforts to refinance the claimant, his efforts  
culminating in a mortgage from the claimant to the Farm Credit Corporation, recorded at the  
Registry of Deeds on December 11, 1995. Jim Harrison has kept control of the claimant since that  
time, and has not, according to the evidence, ever been in arrears since.  
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[44] On December 18, 1995, one week after the mortgage was recorded, the  
Province expropriated 9.687 acres of land (the figure agreed upon by the parties) from the  
claimant=s Westchester II property, which the two parties ultimately agreed was comprised of 760  
acres, although the property has never been surveyed. This left 24.8 acres in the Westchester II  
holding to the west of the Cobequid Pass Highway, and a deemed area of 725.5 acres. The parties  
agreed that the total area of Westchester II is 760 acres. The area to the west of the Cobequid Pass  
Highway is referred to in this decision as Westchester II West, and the area to the east of it is  
referred to as Westchester II East. At the time of the expropriation, the Board finds (as found  
elsewhere in this decision) that, of the approximately 760 acres in Westchester II, only about 8 acres  
(nestled at the extreme western end of a long, roughly rectangular, property which is, perhaps, 5  
kilometres long and not more than two-thirds of a kilometre wide at its widest point, were producing  
blueberry fields. The lands to the east of the Cobequid Pass Highway were undeveloped forest  
lands.  
[45] Although Mr. Harrison=s evidence on the point was ambiguous, the Board  
understood his evidence to assert that, possibly, sometime in the fall of 1995, i.e., before the date of  
the expropriation, or sometime shortly after the date of the expropriation itself in December of that  
year, highway workers began to cut trees through the Harrison property for the construction of the  
Cobequid Pass Highway. Mr. Ryle, in his evidence, said that it was his Aunderstanding@ that survey  
lines were cut through by workers on behalf of the Crown after the expropriation. On the balance of  
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probabilities, the Board finds that entry by highway workers onto the lands expropriated from the  
claimant did not occur until after the date of the expropriation. Once expropriation had occurred and  
construction work had begun, Mr. Harrison indicated that he would still have been able, at least for a  
period of time, to walk across the construction zone from Westchester II West to Westchester II  
East, but that he considered the possibility of any practical access by him from Westchester II West  
direct to Westchester II East had ended when construction crews arrived at the Westchester II site.  
The Board agrees, although it considers, on the balance of probabilities, that Mr. Harrison had, up to  
the time of the expropriation, visited Westchester II East rarely, if at all. Indeed, it appears from the  
evidence that the hundreds of acres in Westchester II East (a piece of land about five? kilometres  
long) has been traversed only once by either Jim Harrison or his representatives; moreover, this visit  
did not occur until the summer of 1998, two and a half years after the expropriation. Even if one  
considers simple wood cutting or timbering, as opposed to development of blueberry lands, the  
evidence indicates that no timber in Westchester II East had been cut anywhere for a very long  
period of time, certainly long before Jim Harrison took control of the claimant, and perhaps even  
before acquisition of the property by his father, Raymond.  
[46] With respect to the wooded nature of the Westchester II East lands, and the  
lack of evidence that they were utilized at all, much less for blueberry development or growing, the  
Board notes that the claimant=s counsel referred in his examination of Mr. Harrison to the  
claimant=s having Aexisting fields@ on the east side of the Cobequid Pass Highway, as well as the  
west:  
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Q.  
Did you attempt to cross the construction zone dividing your existing fields?  
[emphasis added]  
Counsel for the claimant also remarked in closing submissions that one should keep in  
mind that:  
this claim is about an expropriation that affects a blueberry farm operation in Westchester  
Mountain and a highway that was constructed in the middle of the operation. [emphasis  
added]  
[47] In somewhat similar vein, the closing brief for counsel for the claimant further  
states, at paragraph 9, that his client was told in the summer of 1995 that the Crown:  
intended to expropriate 9.68 acres of its farm lands in Westchester Mountain for the  
construction of the new Trans-Canada highway commonly known as the Cobequid Pass.  
[emphasis added]  
[48] As the Board noted, there are deemed to be 760 acres in Westchester II. Of  
those 760 acres, the Board finds that only 8 acres were developed blueberry acreage at the time of  
the expropriation at the end of 1995. Those 8 acres were at the extreme western end of Westchester  
II, in the area the Board calls Westchester II West in this decision. Mr. Ryle also asserted 2 to 3  
acres of blueberry growth were scattered about Westchester II West, between the 8 acre field and the  
Cobequid Pass right-of-way, in the area of the salt spray protection strip on the west side of the  
Cobequid Pass right-of-way which Mr. Ryle urged the Board to accept, and which the Board (for  
reasons discussed elsewhere in this decision) has rejected. In the balance of the 760 acres of  
Westchester II, there were no other blueberry fields at all. More specifically, in the 9.687 acres  
which were expropriated for the right-of-way for the Cobequid Pass Highway (referred to in one of  
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the above passages as Afarm lands@), and in all 725.5 acres of Westchester II East (i.e., the lands to  
the east of the right-of-way) there were no Aexisting fields,@ or blueberry operations of any sort: in  
fact, no development of blueberry lands, of even the most rudimentary nature, had been commenced  
anywhere.  
[49] Instead, Westchester II East (including the 9.687 acres which were actually  
expropriated) was at the time of the expropriation, and at the time of the hearing, forest C portions of  
which, according to the evidence, have blueberry growing potential, but forest all the same. The  
highway was not constructed Ain the middle@ of a farming operation: it was constructed in the  
woods. That there were only woods, rather than fields, in Westchester II East, was acknowledged by  
the claimant=s expert witness, Mr. Ryle, on cross-examination:  
Q.  
None of the lands on the other side of the highway are developed blueberry lands?  
They're all timber?  
A.  
Yes.  
[50] In addition to the 9.687 acres which the province expropriated from the  
claimant, it also expropriated half an acre of the Bogle blueberry fields which were being leased by  
the claimant.  
[51] During the time Raymond Harrison was in charge of operations, he did not  
invest significantly in machinery or equipment. Since 1995, the claimant, under Jim Harrison=s  
direction, has brought a significant area of new land into blueberry production. Since 1995, the  
claimant has acquired a significant amount of equipment used for harvesting and development work,  
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including tractors, harvesters, trucks, trailers, and excavators. Specifically, the claimant bought a  
harvester and a float in 1995, a used excavator in 1996, and a new excavator in 2000.  
[52] Mr. Harrison testified that the addition of the excavator in 1996 placed him in  
the position of also being able to do custom work for others in the development of their lands.  
ACustom work@ means work carried on by one agricultural operator for another, such work  
including production work (e.g., harvesting) and development work (e.g., clearing and levelling of  
fields). Mr. Keough noted that, for an operation such as the claimant, which has chosen to undertake  
extensive land levelling in its various holdings, the large sum of money to be invested in equipment  
such as an excavator could be efficiently dealt with by not only engaging in the levelling of one=s  
own property, but that of others, thereby achieving economies of scale, higher utilization of  
equipment, and earning of a profit.  
[53] Mr. Ryle likewise suggested that custom work is a useful outlet for unused  
capacity in expensive equipment such as an excavator, which Mr. Ryle described as weighing about  
25 tons and costing perhaps a quarter of a million dollars. Mr. Ryle said that, in the five years  
preceding the hearing, the custom work done by Mr. Harrison was extensive, and included  
developing 60 acres of land for another farmer. Mr. Ryle testified that Mr. Harrison does custom  
work on fields throughout Cumberland County, in other parts of Nova Scotia, and in other parts of  
New Brunswick. The custom work done by the claimant for other growers includes servicing about  
one quarter of the growers to whom Harrison acts as a broker. The Board notes that some of the  
custom work done by the claimant corporation was for the second corporation (J.C. Harrison  
Enterprises Limited) established by Jim Harrison in 1998. Data with respect to the actual revenues  
is not entirely complete, and there is some confusion between the categories of custom work (or  
contract work as Mr. Keough calls it in his table) and their income. Nevertheless, the tables below,  
taken from the evidence of Mr. Bradley and Mr. Keough, both of whom obtained some financial  
information from the claimant, indicates significantly greater custom work revenues in the post  
expropriation period:  
Mr. Keough=s Data - Custom Work, Etc.  
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PRE-EXPROPRIATION  
POST-EXPROPRIATION  
Revenue  
1990  
-
1991  
-
1992  
-
1993  
1994  
1995  
1996  
-
1997  
38128  
6823  
1998  
27321  
108491  
1999  
46115  
96535  
2000  
60575  
110620  
2001  
31006  
137748  
Trucking  
-
-
-
-
-
-
Contract  
Work  
22353  
18239  
22673  
18162  
(note)  
Other  
784  
-
-
27439  
20957  
10000  
-
21290  
14  
11613  
1435  
635  
Income  
(note)  
Note: In some years, other income includes contract work.  
Mr. Bradley=s Data: Custom Work, Etc.  
PRE-EXPROPRIATION  
POST-EXPROPRIATION  
1990  
1991  
1992  
1993  
1994  
1995  
1996  
1997  
1998  
1999  
2000  
2001  
-
-
-
-
-
-
18162  
6823  
108491  
96535  
110620  
137748  
Custom  
Work  
(Note 2)  
28986  
-
20318  
-
26935  
-
50337  
-
20957  
-
10000  
-
22121  
-
53291  
38128  
14  
11613  
46115  
-
-
-
-
Other  
Income  
27321  
Trucking  
Note 2: prior to 1996, custom work was included in Other Income.  
Both Mr. Keough and Mr. Bradley note uncertainty with respect to custom work pre-  
expropriation, i.e., from 1990 to 1995, in which (according to both experts, although their  
data is not exactly the same) custom work and other contract work were sometimes mixed  
together in the data. Using either the Keough or the Bradley tables, the claimant=s pre-  
expropriation income from custom work (from the years 1990 to 1995) never exceeded  
$22,673. Further, neither Mr. Keough nor Mr. Bradley show any revenue from trucking for  
1990 to 1995. Post expropriation, in 1996 and 1997, custom work appears to continue at  
levels comparable to those pre-expropriation, but trucking becomes a significant source of  
revenue in 1997, according to both Mr. Keough and Mr. Bradley, with revenue of $38,128.  
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Trucking revenue has continued at significant levels since that time. Both Mr. Keough and  
Mr. Bradley have identical custom work figures from 1998 through to 2001, which show  
sharp increases over the pre-expropriation revenue streams, hitting a high in 2001 of  
$137,748. Counsel for the Crown described the claimant=s custom work income as having  
Askyrocketed@ in the years since the expropriation. In his oral evidence, Mr. Ryle referred  
to Jim Harrison=s custom work as being an attempt to mitigate his loss.  
[54] Jim Harrison=s takeover of the claimant by late 1995 did not lead just to rapid  
growth in the amount of custom work being done by the claimant; in addition, the claimant=s mode  
of harvesting changed since Mr. Harrison took control. 1995 was the last year in which 100% hand  
harvesting of blueberries in the various holdings of Harrison Blueberry occurred. There is some  
evidence that some work on field improvements occurred in 1994 on various of his holdings. Since  
1995, under Jim Harrison=s direction, improvement of fields (land levelling and rock picking) has  
occurred at a vigorous pace, with 90% of the claimant=s land holdings being levelled and, it seems  
at least in some cases, rock picked as well, by 2002. Levelling permits machine harvesting, with  
significantly reduced harvesting costs, and an increase in the market value of the properties levelled.  
The cost of such work is not insignificant, although the actual cost was a matter of debate in the  
evidence before the Board. Mr. Keough, for example, fixed the cost at $650 per acre, to which one  
must add the hidden costs of foregoing yield in the short to medium term C improvements of this  
type can lead to yields as much as 25% to 50% below their previous level, for two or three biannual  
harvests after the improvements have been completed. Since 1995, the claimant has brought a  
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significant area of new land into blueberry production (at least 60 acres at Southampton, according  
to Mr. Harrison=s testimony; at least 70 acres in total, according to the Ryle Report, and perhaps as  
much as 125 acres, according to the Keough Report). The claimant has also improved the  
machinable standard of about another 150 acres, according to the Ryle Report at page 10 (with Mr.  
Keough referring to 270 acres having been levelled, and in many cases, rock picked), including the  
upgrading of all of the holdings at Westchester I and existing blueberry field at Westchester II.  
[55] In December of 1996, the Omond appraisal, commissioned by the Crown, was  
completed, recommending a total compensation to the claimant of $29,991 ($8,718 for the  
expropriated lands themselves, and $21,273 for injurious affection). The formal statutory offer to  
the registered owner was made in January of 1997.  
[56] In 1997, the Crown constructed two government land access roads, No. 6 and  
No. 7, which cross under the Cobequid Pass Highway, and then run parallel to the eastern side of the  
right-of-way. These government land access roads are intended to provide access from the  
Westchester Road to privately owned lands lying on the east side of the Cobequid Pass right-of-way,  
including the Westchester II East parcel. These roads are used by people working on other  
properties located in the same area, but the claimant declines to use these roads. The claimant  
asserts that the roads have not provided acceptable access, and that as a result, the claimant has been  
delayed in implementing its claimed development plan for Westchester II East. Part of the  
claimant=s case even asserts that access over the government land access roads is so poor as to  
constitute a Ade facto abandonment,@ as Mr. Ryle put it in his evidence; under this argument, the  
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purported complete inadequacy of the government access roads prevented, and continues to prevent,  
the claimant from engaging in any development of Westchester II East at all.  
[57] In May, June and July of 1998, representatives of the claimant who had been  
retained in relation to the expropriation visited the property. Both Mr. Sibley and Mr. Ryle visited  
the property on both sides of the Cobequid Pass Highway, to see its location, and briefly viewed the  
property on both sides of the highway. In his oral evidence at the Board hearing, Mr. Sibley referred  
to having gone as far as the West Branch of the Wallace River on June 10, 1998, saying that they  
had actually crossed the river, i.e., reached the eastern shore at that time. As he acknowledged on  
cross-examination, however, he had not, at the time of his oral discovery, any recollection whatever  
of having crossed to the other side of the river on June 10. The Board finds that, if Mr. Sibley did  
indeed cross the West Branch of the Wallace River at that time, the visit made relatively little  
impression upon him. It also finds that the information upon which Mr. Sibley based his opinions of  
the Westchester II property, including the type of forest located there, and the blueberry potential of  
the property, was derived largely, and perhaps entirely, from the visit which occurred on July 3,  
1998.  
[58] In the July 3, 1998 visit, Mr. Sibley, Mr. Harrison, Mr. Ryle, Mr. Sobey, and  
Glynn Speight, a forester, walked over the length of Westchester II East (which is, depending on the  
item of evidence one refers to, between a minimum of about 3 kilometres to something approaching  
5 kilometres in length), from its western end next to the Cobequid Pass Highway, to its eastern end,  
exiting from the eastern end on to the nearby Webb Mountain Road over property owned by a third  
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party, as the claimant neither owns a right-of-way nor a road from the eastern end of Westchester II  
East onto the Webb Mountain Road. The purposes of the July 3, 1998 visit included evaluating the  
practicability of a crossing over the West Branch of the Wallace River, near the western end of  
Westchester II East, and also assessing the property both for timbering operations and the potential  
of blueberry development of at least some of the lands. On the evidence before the Board, this was  
the first, and only, time that the length of Westchester II East (which is, perhaps, depending upon the  
evidence once refers to, anywhere from about 3 kilometres to 5 kilometres in length) has ever been  
crossed by Mr. Harrison himself, or by any of the other witnesses who testified on his behalf.  
Moreover, it appears from the evidence that Mr. Harrison may have gone as far as the West Branch  
of the Wallace River (which is toward the western end of Westchester II East) on only two  
occasions, one of them being the July 3, 1998 visit.  
[59] On August 3, 2000, the claimant received an interim payment for costs.  
[60] On August 15, 2000, Mr. Ryle met with Mr. Chaisson and Mr. Bushell of  
TPW in Truro, and engaged in what appears to have been a vigorous exchange of views about the  
claimant=s claim for compensation in general, and, in particular, such issues as whether the claimant  
indeed had an intent to develop Westchester II East, or even Westchester II as a whole, and whether  
the government land access road was adequate. Mr. Ryle maintains that Mr. Bushell, in asserting  
that the government land access roads leading to Westchester II East were Aperfectly all right,@ told  
Mr. Ryle that A6% is the maximum slope on the 100 series highways in Nova Scotia@ and that there  
was no slope on the access road which exceeded 6%. After Mr. Ryle=s examination of the  
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engineering drawings showed that there were slopes which were indeed in excess of 6% (and in  
particular, that there was a 12.482% slope on the government land access road near the Westchester  
Road) Mr. Ryle=s evidence to the Board was that,  
Ait was at this point [i.e., August 2000] that the whole issue of the suitability of the access  
road came to the fore.@  
[61] The evidence before the Board as to when the Cobequid Pass Highway  
opened is conflicting. For example, according to the AAthol Report@ (written by Patricia A.  
Haylock), the highway was opened in December of 1998; the claimant=s brief, however, says that  
the highway was constructed between the fall of 1995 and the fall of 1997. On the evidence before  
it, for the purposes of this expropriation, the Board concludes that the highway was open in  
December of 1997.  
[62] On January 12, 2001, Mr. Sobey prepared a written report dealing with the  
grading of Government Land Access Road No. 7, the gravel surface of Government Land Access  
Road No. 6 and 7, and the road gradient between Government Land Access Road No. 7 and the  
Westchester Road. In January 2001, Mr. Ryle produced the final version of his report (although he  
did certain revisions and additions to it during the hearing on the merits which led to the present  
decision), which in part, postulates that Westchester II East must be deemed to be abandoned  
because of the inadequacy of the government land access roads. In practical terms, the abandonment  
assertion means, according to Mr. Ryle, that the claimant would be entitled to $787,296 in  
compensation (apart from such things as owner=s time, etc.), but would still retain title and  
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possession of the lands which Mr. Ryle claims to be in a state of de facto abandonment as a result of  
the alleged inadequacy of the government land access roads. According to Mr. Ryle=s report, if the  
property is not deemed to be abandoned, the compensation payable (as of the date of his report in  
January 2001) would be $672,146. The following summary appears at page (iii) of Mr. Ryle=s  
report of January 2001:  
Continuance  
Abandonment  
III A  
III B  
value of land taken or sterilized  
in protection strips  
(a)  
(b)  
$ 31,096  
6,000  
$31,096  
6,000  
Loss of future production on Bogle lands  
in protection strip (10 years)  
18,703  
5,400  
18,703  
5,400  
IIC  
Diminution of value of 9 acre field  
III D  
Excess costs of development and operation  
(note no interest applies on this item)  
165,909  
-
III E  
Delay of development program  
(at 8% interest rate)  
81,914  
267,000  
30,000  
81,914  
III F  
Diminution of value of separated lands  
Requirement for a safe building  
452,500  
III G  
Subtotal  
606,022  
440.113  
605,613  
605,613  
Without III D i.e. interest eligible  
III K  
Interest to December 18 2000 from Dec 18 1995  
5 years on eligible items (5 yrs @ 6%=30%)  
132,033  
572,146  
100,000  
$672,146  
181,683  
787,296  
-
total of quantifiable items and interest  
Add estimated costs to rehabilitate access road  
$787,296  
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[63] In the fall of 2002, Mr. Keough was engaged by the claimant; his report  
entitled AHarrison Blueberry Enterprises Ltd. Expropriation: Discount Rate Re: Future Excess  
Costs and Lost Profits,@ is dated December 23, 2002.  
[64] Mr. Omond=s first appraisal of the subject property was prepared for the  
Crown in 1996, based in part upon certain assumptions, some of which have since changed,  
including acreage (about 500 acres) and travel distance from Westchester II West to Westchester II  
East via the government land access roads and the Westchester Road (6 kilometres round trip). In  
1997, it appears the Crown agreed with the claimant that, for the purposes of this expropriation  
proceeding, the area of Westchester II East would be assumed to be 760 acres instead of about 500  
acres. It seems that Mr. Omond was not consulted further in relation to this matter, between 1996  
and the fall of 2002. In the fall of 2002, Mr. Omond was informed of the Crown=s agreement to the  
larger area, and was also provided with a revised assumed travel distance of 11 kilometres instead of  
6 kilometres round trip between the Westchester II West and Westchester II East. In a letter to  
counsel for the respondent Crown dated October 30, 2002, Mr. Omond accepted, for the purposes of  
the calculations needed to prepare requested supplementary report, the assumption that the land area  
in question was 760" acres, comprising 740 acres (PID #2509045), and another 20 acres (PID  
#25085713). Mr. Omond, however, left no doubt that, in his opinion, the larger area which he had  
been told to assume existed was much too large, stating that it:  
AExaggerates the actual size of that site of 200 plus or minus acres.@  
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The Board notes that Westchester II East had not been surveyed in 1995, or in 2002, at the  
time of Mr. Omond=s Addendum, or by the time of the hearing C indeed there is no  
evidence of a survey, whatever its age, before the Board.  
[65] Mr. Omond, in his amended appraisal report, assumed that the additional  
round trip distance from Westchester II West to Westchester II East would now be 11 kilometres,  
rather than the 6 kilometres assumed in his 1996 appraisal. He therefore increased his allowance for  
severance damage from 10%, the amount used in the 1996 appraisal, to 15%, which he said reflected  
Aboth the physical separation plus the nuisance and added travel costs of accessing the severed  
lands.@ Mr. Omond=s new calculation of the total compensation payable, which took account of  
such factors as the significant increase in assumed area of the lands in question, and severance  
damage of 15% rather than 10%, was for a total of $52,278, being $8,718 for the market value of the  
expropriated lands and $43,560 for injurious affection. The latter category of compensation  
reflected Mr. Omond=s opinion with respect to severance damage ($39,560) and his assumptions  
with respect to the effects of salt spray protection strips on each side of the Cobequid Pass Highway  
($4,000). He included no compensation for the Bogle leasehold which had been expropriated. In  
part 2 of his October 2002 appraisal report, Mr. Omond, while cautioning that he did:  
. . . not have the necessary background or expertise in the field of blueberry production or in  
the field of forestry to provide a technical critique . . .  
of the Ryle Report, offered one page of general observations and opinions on that report.  
Describing it as Aa very confusing report@ at one point in his oral evidence to the Board,  
Mr. Omond criticized (among other things) the Ryle Report=s claim of a 20% loss in value  
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of 400 acres of land which Mr. Ryle claimed to be valued at $3,000, as if they had been  
developed blueberry land; in fact, Mr. Omond stated, the 400 acres in question were in a  
Anatural wooded state as of December 1995 expropriation.@ As already noted, the Board  
agrees.  
[66] On October 21, 2002, Dr. Eaton submitted to counsel for the Crown a report  
which assessed the Ryle Report. Dr. Eaton described the Afarm gate value,@ or the price to the  
grower when Alanded at a receiving shed@ or elsewhere, as being Ainflated@ in the Ryle report,  
supporting this assertion with references to prices which were actually paid during the relevant  
periods; said that the Ryle Report=s assertion of likely average yields per acre for blueberries which  
might be grown in future in Westchester II East were likewise inflated; accepted that 400 acres of  
blueberry land was a Apossible scenario,@ but disagreed with Mr. Ryle=s assumption that the 400  
acres could be in full production after 25 years, suggesting that the development would be  
Aconsiderably slower, especially if there are large areas currently completely devoid of blueberry  
plants,@ noting the effects of fluctuating farm gate prices upon development activities. He also  
disagreed with Mr. Ryle=s assumption that an acre of woodland for which blueberry development  
was commenced would reach full production in six years, pointing to periods for development three  
or more times longer than this. Dr. Eaton specifically disagreed with the Ryle Report=s assumption  
that salt spray protection strips would be needed on either side of the Cobequid Pass Highway right-  
of-way. Dr. Eaton suggested that no salt spray protection strips were needed on the west side of the  
Cobequid Pass Highway, i.e., for Westchester II West, and that a salt spray protection strip having a  
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width of 50 metres would be sufficient to protect fields on the east side of the Cobequid Pass  
Highway.  
[67] On October 30, 2002, Mr. Bieren provided comments to counsel for the  
respondent Crown on the expropriation, saying that he agreed with Sobey and Associates that the  
gradient of 12.482% (the maximum grade on the government land access roads) was acceptable.  
Mr. Bieren, however, disagreed with Mr. Sobey=s conclusions about the alleged poor quality of the  
gravel surface of the government land access roads. Mr. Bieren did agree with the Sobey Report that  
the grade of the Government Land Access Road No. 7 at the point it intersects with the Westchester  
Road exceeds the TAC guidelines; Mr. Bieren also accepted Mr. Sobey=s proposed remedy for the  
excessive slope at the intersection of with the Westchester road, although he suggested his own  
solution, which would be a less expensive alternative which would involve steepening the grade to  
15% from the proposed 13.708%. In their oral evidence at this proceeding, both Mr. Sobey and Mr.  
Bieren indicated their acceptance of the other=s solutions as being acceptable.  
[68] The Board will refer to the two separate strips of pavement comprising the  
Cobequid Pass Highway (each of which has two lanes going in the same direction), as the Awestern  
(southbound) carriageway@ and the Aeastern (northbound) carriageway.@ The western (southbound)  
carriageway abuts the Bogle lands and Westchester II West; the eastern (northbound) carriageway  
abuts Westchester II East. The land acquired by the Crown through which both carriageways of the  
Cobequid Pass Highway runs will be termed the ACobequid Pass right-of-way.@  
V
LAND AREA  
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[69] According to at least some of the evidence, the assumed land area at  
Westchester II (both West and East, including the lands expropriated for the highway) is 760 acres.  
Less than 5% of this has been surveyed: Westchester II West is the subject of Mr. Keen=s survey  
plan of December 13, 2000, which shows an area of 24.8 acres (10.04 hectares, which counsel for  
the parties agreed at one point in the hearing that they would regard as being about 25 acres in size).  
[70] With respect to the area of the claimant=s land actually expropriated, a survey  
plan of the lands to be taken for the right-of-way (done before the expropriation, in January, 1995)  
shows the area as 3.922 hectares which the Board converts to 9.692 acres. The parties have, in  
effect, as the Board has noted elsewhere, agreed that the area of the land taken for the right-of-way is  
9.687 acres, with this figure being used in a number of documents before the Board (including early  
ones, such as Mr. Omond=s appraisal report of December 1996). Given the manifest uncertainties  
of the bulk of the evidence in this proceeding, the Board sees nothing as turning on the very small  
difference between 9.687 and 9.692 acres, and has used 9.687 acres in this decision.  
[71]  
Mr. Keen=s survey plan of December 13, 2000, shows Westchester II West to  
be 10.04 hectares, with the claimant=s blueberry field being shown as 3.27 hectares. The survey  
plan does not show the equivalent in acres, but 10.04 hectares converts to 24.809 acres, with 3.27  
hectares converting to 8.0803 acres.  
[72] Since Exhibit H-28 (Mr. Keen=s survey plan shows PID #25085713 or  
Westchester II West, as 24.8 acres), and since the acreage of the right-of-way is 9.687 acres, one can  
say with a measure of confidence that the total acreage of Westchester II West and the right-of-way  
is about 34.5 acres.  
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[73] Except for the two pieces just described (Westchester II West, and the right-  
of-way), which total about 34.5 acres, the balance of the 760 acre property (which is referred to in  
this decision as Westchester II East) is entirely unsurveyed, in whole or in part. The uncertainties  
with respect to the area of the subject property (including the total area of Westchester II East, or the  
areas of particular components of Westchester II East) are underscored by the comments of Mr.  
Omond in his appraisal addendum of October 28, 2002. When Mr. Omond prepared that addendum,  
he was asked to consider different assumptions from those with which he had been provided in 1996  
in relation to travel distance and land area. He accepted without quarrel the increased travel  
distance, but recorded his disagreement with the increased land area which he had been instructed to  
assume existed.  
[74] The specific acreage assumption which Mr. Omond was directed to apply is  
stated in his letter of October 30, 2002, as being 760" acres in total, with 740 acres being in PID #  
25090945 and another 20 acres in PID # 25085713. Mr. Omond=s 1996 report has attached to it a  
plan showing a total of 500 acres in the entirety of Westchester II, with 104 acres of this lying  
between the Westchester Road and the West Branch of the Wallace River, and 396 acres lying to the  
east of the river, all of these lands being shown as being part of PID #25090945. The 1996 Omond  
Report, while it shows parcel PID #25085713, does not count it as part of the Westchester II  
property.  
[75] In the letter accompanying his addendum of October 20, 2002, Mr. Omond  
said, in effect, that he still considered that the total land area (apart from, presumably, the 20 acres in  
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PID #25085713) was around 500 acres (as he had assumed it to be when he did his appraisal in  
1996) instead of (as he was now instructed to use in his 2002 addendum) 760 acres.  
[76] The Board also notes that Ms. Haylock likewise worked from mapping  
information which originally showed a smaller area, and then scaled up the results to fit the assumed  
larger area which she was instructed to apply.  
[77] Exhibit H-28, entitled AAir Photo Mosaic with Property Boundary Overlay -  
Harrison Properties, Westchester Mountain, December 2002@ was produced by the Crown on  
December 30, 2002. It is not a survey, and contains no references to acreage. It does, however,  
contain a composite photograph of the subject property, as well as some surrounding properties,  
upon which boundaries have been overlaid. It is noted on Exhibit H-28 that it was compiled from air  
photography done in 1995, and that the property boundaries shown on it were Aextracted from the  
Nova Scotia Property Records database.@ A footnote on Exhibit H-28 describes it as follows:  
This map is a graphical representation of property boundaries which approximate the  
configuration, size and location of properties. Care has been taken to ensure the best  
possible quality; however, this map is not a land survey and is not intended to be used for a  
legal description or to calculate exact dimension or area. THIS IS NOT AN OFFICIAL  
RECORD.  
Exhibit H-28 shows the property identified in Mr. Omond=s report as entirely PID  
#25090945 as now being broken up into three parts: first, PID #25090945; second, the  
highway right-of-way; third, and finally, the land to the west of the highway right-of-way,  
east of the Westchester Road, which is now identified as PID #25385618. Mr. Keen=s  
survey of December 13, 2002, shows the same land identified in Exhibit H-28 as  
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#25385618, but does not show any PID number for it. The area stated by Mr. Keen for  
what amounts to PID #25385618 is 24.8 acres.  
[78] The measure of confidence with which one can state the total area of  
Westchester II West and the right-of-way as being 34.5 acres cannot remotely be approached in  
respect to any of the balance of the Westchester II property.  
[79] Turning first to the area between the Westchester Road on the west, and the  
river on the east, Mr. Omond=s 1996 report showed 104 acres, in PID #25090945, in the space  
between the Westchester Road and the river. In like manner, a map which appears as an appendix in  
the Athol Report shows 104 acres between the Westchester Road and the river. Subtracting 34.5  
acres (the area of Westchester II West and the right-of-way) from 104 acres yields 69.5 acres as the  
area of land from the east side of the right-of-way to the river.  
[80] This figure of 69.5 acres is reasonably consistent with the assertion at  
paragraph 101 of the respondent=s closing brief that there are about 70 acres of land between the  
Cobequid Pass right-of-way and the river.  
[81] The assertion of 70 acres is not, however, consistent with the acreage shown  
in Exhibit H-23B (a very rough sketch), which is part of the submissions by Mr. Sibley and Mr.  
Ryle, and which was referred to extensively by Mr. Sibley in his evidence. It is also not consistent  
with Exhibit H-25, a memorandum from Mr. Sibley to Mr. Ryle of September 29, 1998. Instead of  
70 acres, both Exhibit H-23B and H-25 show a total of 50 acres between the right-of-way and the  
river, divided into two parcels of equal size, with the first parcel of 25 acres being described by Mr.  
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Sibley as being lands suitable for blueberry development, and the second parcel of 25 acres (on the  
steep western escarpment overlooking the river) not being suitable. Exhibit H-25 also states  
assumed acreages for the areas to the east of the 225 metre contour of the eastern escarpment,  
dividing the area into two pieces of 348 acres and 206 acres, respectively. On the balance of  
probabilities, the Board gives little weight to the acreages stated in Exhibits H-23B and H-25.  
[82] In the Board=s view, the assertion by counsel for the respondent Crown of 70  
acres as the area between the right-of-way and the river is also reasonably consistent with the  
acreages shown in Exhibit H-68. Exhibit H-68 is a rough sketch, and calculations, prepared by Mr.  
Ryle near the conclusion of the hearing, overlaid on a portion of a contour map. Exhibit H-68 shows  
104 acres between the West Branch of the Wallace River and the Westchester Road, just as the  
drawing in Mr. Omond=s 1996 report does.  
[83] In Exhibit H-68, Mr. Ryle shows 32 acres (rather than the 25 acres shown in  
Exhibit H-25, the exhibit relied on previously by Mr. Sibley and Mr. Ryle) between the edge of his  
claimed salt spray protection strip running along the east side of the right-of-way and the 200 metre  
contour of the western escarpment above the West Branch of the Wallace River. Exhibit H-68  
shows 35 acres in the steeply sloped western escarpment, between the 200 contour and the West  
Branch of the Wallace River (as opposed to 25 acres described by Mr. Sibley in Exhibit H-23B).  
Thus, according to Exhibit H-68, the total area of land between the edge of his claimed salt spray  
protection strip running along the east side of the right-of-way, and the 200 metre contour of the  
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western escarpment above the West Branch of the Wallace River, is a total of 67 acres (32 acres +  
35 acres).  
[84] Deleting Mr. Ryle=s claimed salt spray protection strip to the east of the right-  
of-way (for reasons discussed by the Board in the ASalt Spray Protection Strip@ part), the Board  
concludes that there are about 34.5 acres of land owned by the claimant between the eastern  
boundary of the Cobequid Pass right-of-way and the 200 metre contour of the western escarpment.  
The Board will assume that all 34.5 acres have blueberry potential (Mr. Ryle testified that there were  
31 acres of woodland with blueberry potential between the right-of-way and the river, and a figure  
reasonably consistent).  
[85] The Board notes that neither the 200 metre contour nor the 250 metre contour  
represent the absolute top of the two upward slopes in question: the land continues to rise thereafter  
on either side of the river. Nevertheless, the evidence before the Board (including that of Mr. Sobey  
and Mr. Sibley) uses these contours, or something close to them, as the deemed tops of the  
escarpments, with the Crown neither providing alternative evidence nor making, in the Board=s  
judgment, any significant attack upon these assumptions. Going from the 200 metre contour of the  
western escarpment down to the West Branch of the Wallace River, Mr. Ryle=s Exhibit H-68 shows  
35 acres (in contrast to the 25 acres claimed in Exhibit H-25). From the 200 metre contour of the  
western escarpment down the slope to the West Branch of the Wallace River, the Board finds there  
is 35 acres (a figure found in Exhibit H-68), all of which is heavily wooded, steep, and without  
blueberry potential.  
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[86] This finding leads to the conclusion that there are 69.5 acres of land between  
the eastern edge of the right-of-way and the river (34.5 acres + 35 acres).  
[87] Recognizing that there are no surveys available to the Board, the Board sets  
the acreage between the West Branch of the Wallace River and the Westchester Road at 104 acres  
(the figure used by both Mr. Omond in 1996 and Mr. Ryle in his Exhibit H-68, made in 2003).  
[88] The assumption which Mr. Omond was directed to accept in his 2002  
addendum with respect to area was 740 acres for PID #25090945. He had shown PID #25090945 in  
his 1996 report as being 500 acres, with 104 acres being between the West Branch of the Wallace  
River and the Westchester Road, and 396 acres being between the West Branch of the Wallace River  
and the eastern end of the property. The Board has found the area between the river and the  
Westchester Road to be 104 acres for purposes of this proceeding, so the 1996 Omond assumption of  
104 acres for this portion remains intact.  
[89] It is the lands to the east of the river (i.e., apart from the 104 acres deemed to  
be between the river and Westchester Road) for which the deemed area has changed. Mr. Omond  
considered in 1996 (and still believed in the fall of 2002) that this was 396 acres. If one takes the  
total of 740 acres (the revised acreage of PID #25090945 which Mr. Omond was told by the Crown  
to assume to be the acreage), together with the 20 acres in PID # 25085713, the parcel which was  
previously omitted, one has a total of 760 acres. If one subtracts 104 acres (the consistently assumed  
acreage west of the West Branch of the Wallace River to the Westchester Road), one has 656 acres  
in total to the east of the river.  
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[90] The Board concludes that the area of the Asevered@ land, i.e., the lands to the  
east of the Cobequid Pass right-of-way, is 725.5 acres. This is calculated by deducting from 760  
acres (the assumed area of all of Westchester II), the area of Westchester II West (24.8 acres) and  
the area of the expropriated lands 9.867 acres. This is reasonably consistent with Mr. Ryle=s  
evidence on cross-examination:  
Q.  
A.  
. . . there are, in fact, not 740 acres of severed land?  
No. There's actually about 720 . . .  
[91] Going from the river up the eastern escarpment, Exhibit H-68 shows 91 acres  
between the river and the 225 metre contour, all of which is heavily wooded, and all of which is too  
steep to have blueberry potential. The area of 91 acres shown by Mr. Ryle in Exhibit H-68 contrasts  
with the area shown in Exhibit H-25, the memorandum from Mr. Sibley to Mr. Ryle of September  
29, 1998, which was referred to extensively in the evidence of Mr. Sibley and Mr. Ryle. Exhibit H-  
25 shows the area as being 124 acres, rather than 91 acres. The Crown has supplied no evidence  
with respect to the area of the land between the river and the 225 metre contour (or the 250 metre  
contour, for that matter) on the eastern escarpment. Taking all of the evidence into account, the  
Board finds the area in question to be 91 acres.  
[92] Mr. Ryle testified that there were 31 acres of woodland with blueberry  
potential between the highway and the river, with 369 acres being east of the river. The Board=s  
deduced area of land with blueberry potential assumed to exist east of the river is similar to that of  
Mr. Ryle: the Board deducts 34.5 acres from 400 acres, obtaining 365.5 acres as the area of land  
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with blueberry potential assumed to exist east of the river or, more precisely, east of the 225 or 250  
metre contour of the eastern escarpment.  
Areas of Various Parcels: Table  
[93] The Board will assume the following acreages (whether agreed upon by the  
parties, shown in survey sketches, or deduced by the Board) of Westchester II, which will apply for  
purposes of this proceeding:  
Land  
Total Acreage  
Westchester II total acreage before expropriation  
760  
Westchester II West (land between the Westchester Road and the Cobequid  
24.8  
Pass right-of-way)  
Area of blueberry field in Westchester II West 1995  
Area of land with blueberry potential in Westchester II West  
Value of land with blueberry potential in Westchester II West  
Right-of-way  
8.08  
16.72 (24.8 - 8.08)  
$900 per acre  
9.687  
Westchester II East (i.e., the land from the Cobequid Pass right-of-way to the  
eastern end of Westchester II)  
725.5 (760 - 24.8 -9.687)  
69.5  
Area of Westchester II East between Cobequid Pass right-of-way and river  
Land with blueberry potential between eastern boundary Cobequid Pass right-  
of-way and 200 metre contour of western escarpment above river  
34.5  
35  
Land without blueberry potential between 200 metre contour of western  
escarpment down to river  
Area of land (all without blueberry potential) from river up to 250 metre contour  
of eastern escarpment  
91  
Area of land between Westchester Road and river  
104  
Area of all land east of river to eastern end of property (including the 91 acres  
between river and 250 metre contour of eastern escarpment)  
656 (760 -104)  
Land with blueberry potential assumed to exist east of 250 metre contour of  
eastern escarpment above river  
365.5 (400 - 34.5)  
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VI  
SALT SPRAY PROTECTION STRIP  
[94] It is common ground between the parties that a tremendous quantity of de-  
icing salt is applied to divided highways like the Cobequid Pass. For example, both Mr. Ryle and  
Dr. Eaton (the principal witnesses on this issue for the claimant and respondent) agreed large  
amounts of salt are put on the Cobequid Pass Highway, Dr. Eaton saying that, in the winter of 2001  
to 2002, the amount was in excess of 77 tons per kilometre for each carriageway C the equivalent, he  
said, of a layer of salt Aa couple of feet deep@ on the road. By comparison, Dr. Eaton said that salt  
applied to the undivided highway located at Folly Mountain, a few miles from the subject site, was a  
much smaller amount, reportedly 25 to 35 tons per kilometre per year.  
[95] While the parties agreed that a great deal of de-icing salt is applied to the  
Cobequid Pass Highway, they disagreed about the effects of salt spray upon blueberry plants  
growing in lands adjacent to the Cobequid Pass right-of-way.  
[96] The claimant asserts that the application of de-icing salt to highways damages  
adjacent blueberry fields, and asserts that a Asalt spray protection strip@ should exist on both sides of  
a divided highway such as the Cobequid Pass, in which it is to be assumed that blueberry production  
cannot, practically speaking, occur. While the evidence given on behalf of the claimant as to the  
appropriate width for such strips varied, a consistent assertion by the claimant was that such  
protection strips should be a minimum of 100 metres in width, measured from the centre line of each  
carriageway.  
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[97] Mr. Harrison says he personally developed a concern about the effects of salt  
spray through his association with the Blueberry Growers Association of Nova Scotia and other  
sources. When Mr. Omond, in the course of carrying out his appraisal, interviewed Mr. Harrison in  
1996 (after the expropriation, but before the highway was built), Mr. Harrison told him that he was  
concerned about the effects salt spray might have on blueberry fields, and that Mr. Harrison would  
probably maintain a 100 foot buffer between the new highway and any blueberry fields in  
Westchester II West and Westchester II East. Mr. Omond adopted this figure in his report.  
[98]  
Mr. Harrison said that the yields for his lands and for neighbouring lands had  
dropped since the construction of the divided highway, but admitted that he could not say whether  
the drop in yields occurred as a result of salt or as a result of some other factor. Such factors include  
weather, as well as land levelling and rock picking (discussed earlier in this decision) which enable  
properties to be harvested by machine instead of by hand. The claimant has carried out this type of  
work at Westchester I and II West since 1995, Mr. Harrison acknowledging that he expected  
development work of this type on the Bogle lands could lead in a reduction in yields which might be  
as high as 50%.  
[99] Counsel for the claimant did not really attempt to assert that Mr. Ryle was  
qualified, by training or experience, to provide opinion evidence in relation to the effect of de-icing  
salt on blueberry production. Mr. Ryle=s report and oral evidence, however, contain a large number  
of assertions in relation to the subject. His report refers to Athe wealth of evidence@ respecting  
damage caused by salt so that development of blueberries in a strip 100 metres next to the highway  
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would be Afruitless,@ with the land having lost Aits present and future value for production of  
berries.@  
[100] In his evidence, Mr. Ryle=s assertions as to the appropriate width of a salt  
spray protection strip varied, with Mr. Ryle referring at various times to widths of 100 metres, 200  
metres, half a kilometre and a kilometre. His most common reference was to a 100 metre wide strip,  
his report referring to:  
. . . a protection strip deemed to be 100 metres from the centre of the nearest carriageway  
such setback being required to mitigate at least some of the damage from both salt and other  
highway pollution . . .  
The reference to Apollution@ relates to a claim which was dropped from the proceeding  
before the present hearing occurred.  
[101] With reference to a 200 metre width for a salt spray protection strip, Mr. Ryle  
testified that, had he known of the amounts of salt being applied to the Cobequid Pass Highway  
when he wrote the final version of his report in January of 2001 (he said he had learned the details  
only in September 2002), AI would probably have gone for 200 metres@ as the width of the  
protection strip. With respect to the one half kilometre width, Mr. Ryle asserted that it was now  
Awidely accepted@ in the Niagara area that the effect of salt spray and other pollution is:  
to obviate the economic operation of soft [fruit] production within a minimum of one half  
kilometre from the highway.  
Putting aside the usual meaning of the term Aobviate,@ the Board assumes that Mr. Ryle=s  
intended meaning was that economic operation of soft fruit production was significantly  
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impaired, or effectively prevented, within a minimum of a half kilometre from a highway on  
which deicing salt was used. With respect to the 1 kilometre width, Mr. Ryle suggested in  
his report that it was, in his view, not Ainconceivable@ that a protection strip Aperhaps in the  
order of a kilometre@ may be seen as necessary, which would, he said, affect not just the  
lands at Westchester II, but the 60 acres of fully developed machinable lands (out of a total  
area of 100 acres) at Westchester I, some little distance to the south and west down the  
Westchester Road. Mr. Ryle=s assertions about salt spray protection strips having widths  
of one-half kilometre or 1 kilometre were based, according to his oral evidence, upon a  
conversation he had with an unnamed individual at a conference several years ago in  
southern Ontario.  
[102] The Board notes that Mr. Ryle, supported it seems by Mr. Gervason, provided  
advice to an owner and gave evidence at an expropriation hearing (Coldwell) in which Mr. Ryle said  
he had personally observed damage to the first three or four rows of an apple orchard, the row  
nearest the road being most damaged, with the effect reducing as one moves farther from the road.  
Mr. Ryle told the Board that he attributed this damage to salt spray. No similar evidence was given  
in the present case.  
[103] For the purposes of his calculations, Mr. Ryle assumed salt spray protection  
strips were necessary, each with a width of 100 metres from the centre line of their respective  
carriageway. Mr. Ryle based his use of a 100 metre wide protection strip by reference to other, and  
it seemed, varying, authorities: at various points in his evidence, he said he had based his use of a  
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100 metre wide salt spray protection strip on Mr. Sibley (one of his consultants on the Ryle Report),  
on Mr. Omond (the appraiser retained by the Crown), and on an Ontario civil action (Schenck et al.  
v. The Queen in right of Ontario (1982), 34 O.R. (2d) 595). The Board finds that none of the  
sources just referred to (Mr. Sibley, Mr. Omond, or Schenck) can be seen as forming any reasonable  
basis for Mr. Ryle=s conclusions.  
[104] With respect to Mr. Sibley, Mr. Ryle said that AMr. Sibley had conducted  
trials on that,@ referring to the effects of salt upon blueberries, referring to Aparticularly the ones at  
Folly Lake.@ According to Mr. Ryle,  
. . . on the basis of that, we decided that 100 metres from the centre line of the carriageway  
was a safe distance. [emphasis added]  
[105] According to this part of Mr. Ryle=s oral evidence, then, Mr. Sibley (and his  
Atrials@) were Athe basis@ for the assertion in the Ryle Report of the need for salt spray protection  
strips which are 100 metres wide. The preponderance of the evidence, however, indicates that Mr.  
Sibley was not the basis for Mr. Ryle=s conclusion about salt spray protection strips. Moreover, not  
only was Mr. Sibley not Athe@ basis for Mr. Ryle=s conclusions: he was not even Aa@ basis for this  
conclusion, i.e., the Board finds that Mr. Sibley never gave any opinion whatever to Mr. Ryle about  
the effects of salt spray on blueberry plants.  
[106] While Mr. Sibley contributed to the Ryle report, he did not file a separate  
report. Mr. Sibley=s curriculum vitae indicates that he was involved as a lowbush blueberry  
extension specialist with the Nova Scotia Department of Agriculture and Marketing in Truro from  
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1970 to 1994, and has been a private consultant in wild blueberry production since that time. He is  
credited in five scientific papers which deal with blueberries as a co-author, with Dr. Eaton C but  
none of these papers deal with the effect of salt spray upon blueberry production. Dr. Eaton=s  
curriculum vitae, in the section in which he lists his research activities, shows a project from 1992 to  
1995 which explored the effects of road salt on lowbush blueberries in the Folly Lake area; the entry  
says that the researchers working with him on the project were Dr. Jeff Hoyle and Andrew King.  
There is no mention of Mr. Sibley. Mr. Sibley=s evidence was inconsistent with that of Mr. Ryle  
with respect to Mr. Sibley=s purported knowledge of salt spray and salt spray protection strips, as  
attributed to him by Mr. Ryle. Mr. Sibley agreed in his testimony that he had:  
. . . never provided Mr. Ryle with a report or an opinion on whether it would be necessary to  
protect blueberry plants from salt spray off the highway.  
[107] After Mr. Sibley testified that he did not provide salt spray information upon  
which Mr. Ryle could have based the claims appearing in his report of January 2001, counsel for the  
respondent Crown asked Mr. Sibley if he had given any such information subsequent to Mr. Ryle  
after his January of 2001 report being finalized:  
Q.  
And you haven't given him any advice or information since the time the report was  
prepared either, on this point?  
A.  
Q.  
A.  
On salt spray?  
That's correct.  
No.  
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[108] Even more remarkably (given Mr. Ryle=s professed reliance upon Mr. Sibley  
as the basis for the assumed need of salt spray protection strips), when counsel for the Crown asked  
Mr. Sibley, on cross-examination, a question in relation to salt spray, counsel for the claimant  
objected to Mr. Sibley answering the question, saying that he had no qualifications in the area.  
Specifically, when Mr. Sibley was asked whether he was in a position to disagree with Dr. Eaton=s  
conclusion that it was Ahighly unlikely@ that a significant amount of de-icing road salt was reaching  
the Bogle and the claimant=s fields, Mr. Sibley replied, ANo.@ Counsel for the claimant then  
objected to the question, saying that Mr. Sibley did not Apossess any qualification,@ had not Agiven  
an opinion,@ had not Aoffered any evidence,@ and had not Adone research@ on salt spray. In the  
view of the Board, counsel for the claimant was correct in this assertion C yet Mr. Sibley was, as  
noted above, the person specifically referred to by the claimant=s principal expert witness, Mr. Ryle,  
in his evidence as having conducted Atrials@ (Mr. Ryle=s word) on the subject, and whose work  
formed the basis of the claim in the Ryle Report that a 100 metre protection strip should apply.  
[109] In short, Mr. Sibley denied any expertise in the effects of salt spray upon  
blueberry plants. Taking into account, on the one hand, Mr. Ryle=s testimony (that advice from Mr.  
Sibley was the basis of the claim in his report that salt spray protection strips were necessary, and  
that they be 100 metres in width), and, on the other hand, Mr. Sibley=s clear evidence (that he never  
provided any information whatever on the topic to Mr. Ryle), the Board prefers the evidence of Mr.  
Sibley. In any event, the Board notes that, even if Mr. Sibley had testified he had provided advice to  
Mr. Ryle on the subject of salt spray damage to blueberries, claimant=s counsel not only made no  
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effort to qualify Mr. Sibley as an expert on the topic, but, in fact, specifically denied that he had any  
such expertise in that area. The Board agrees: Mr. Sibley is entirely without qualification to express  
opinions on this topic, had he ever done so.  
[110] Mr. Ryle=s expression of opinion upon a topic (salt spray) for which he  
lacked qualification, and reliance in turn upon yet another person who likewise lacked qualification  
in that field is a situation parallelling in certain ways that found in Bridges Brothers Ltd. v.  
Canada (F.C.T.D.), [1989] F.C.J. No. 337, a Federal Court of Canada decision dealing with income  
tax, rather than expropriation, but one in which the value of undeveloped rural forest land with a  
potential for being used for the commercial cultivation of blueberries was in dispute. In a similar  
fashion to claims made on behalf of the claimant in the present proceeding, the representative of the  
plaintiff in Bridges asserted to the Court in that case that the claimant=s property was A. . . the best  
blueberry producing land in the world . . . A In Bridges, the Court found that an appraisal report by  
an expert, Mr. Goodwin, was Aso flawed no reliance can be placed upon it.@ Referring to the  
reliance by Mr. Goodwin upon the opinion of a Mr. McAllister, with respect to a certain figure  
relating to the value of wood per cord, the Court observed:  
I have already rejected McAIlister's conclusion to the same effect. Goodwin's reliance on  
McAllister's non existent expertise, who in turn relied upon Runyan [an article upon which  
McAllister had relied, and which the Court found not to be authority for the point in question],  
is of no assistance to him and his conclusion is, accordingly, of no value to me.  
[111] Mr. Gervason is another person who contributed to the Ryle Report, although  
his name does not appear in the report. Mr. Gervason, on cross-examination, agreed that he had not  
personally done any scientific studies on whether de-icing salt affected blueberries, and had simply  
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read information about the topic in preparation for the present proceedings. The Board would  
accord no weight to any opinions by him in relation to this topic.  
[112] The Athol Report, prepared for the claimant by Ms. Haylock, also contains a  
reference to Aa 100 metre salt spray protection strip which must be maintained to protect future  
crops of berries.@ This statement, however, is not an expression of her opinion, Ms. Haylock  
specifically denying that it was: Ait wasn=t my opinion.@ Her use of a 100 metre salt spray  
protection strip simply reflects her having been instructed by Mr. Ryle to assume the existence of  
such a strip in her calculations.  
[113] In his written report, Mr. Ryle said that Mr. Omond Arecommended@ a salt  
spray protection strip be used (Ryle Report, p. 7). In his oral evidence, Mr. Ryle also attributed his  
decision to use a 100 metre salt spray protection strip to Mr. Omond, saying that Mr. Ryle=s  
adoption of a protection strip on each side of the highway:  
was based on . . . partly on the government appraiser's report, who recommended that there  
be at least a 100 foot barrier of vegetative land between the highway and any blueberry  
fields.  
At another point, Mr. Ryle said that:  
Mr. Omond, in his wisdom, suggested that there should be no development of land within 100  
feet of the highway . . .  
While Mr. Ryle, in certain parts of his testimony, said he relied on Mr. Omond with respect  
to the necessity of a salt spray protection strip, the Board did not interpret either the  
counsel for the claimant or the counsel for the Crown as suggesting that Mr. Omond had  
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any expertise whatever in relation to the effects of salt spray upon blueberries, or to any  
standards which might possibly apply with respect to protection strips between highways  
and blueberry fields. Mr. Omond had spoken to Mr. Harrison who had told him that a 100  
foot protection strip was necessary, an assertion which Mr. Omond accepted. He had also  
spoken to the Department of Agriculture and had learned that salt spray could damage  
blueberry plants. The Board attributes no expertise to Mr. Omond with respect to the  
matter of salt spray damage to blueberry plants: a further discussion of salt spray protection  
strips, in the context of the valuations appearing in Mr. Omond=s appraisal report appears  
elsewhere in this decision.  
[114] Mr. Ryle also said that, in asserting a need for a salt spray protection strip of  
100 metres from the centre line, he relied on certain Ontario case law, particularly Schenck,  
involving a claimant fruit grower who asserted damage by salt spray from the Queen Elizabeth Way  
(the AQEW@). In the Board=s view, however, Schenck deals not with a dispute over whether salt  
spray damage had occurred to the plaintiff=s fruit trees, but over whether the Crown should be  
responsible for salt spray damage which all agreed had occurred. There appears to have been no  
question that, first, damage occurred to the plaintiff=s fruit trees, and second, salt spray had caused  
that damage: the Court was satisfied Abeyond question@ that the evidence, including a large amount  
of evidence produced by the defendant, demonstrated that salt spray had actually caused damage to  
the plaintiff=s peach and apple trees. Chemical analyses showed conclusively the presence of high  
levels of sodium chloride from highway salt spray in the plaintiff=s peach and apple trees. No  
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evidence of this type (i.e., chemical analyses showing salt contamination of tissue in plants on the  
subject lands, or other lands relevant to this proceeding) exists in the present proceeding, whether  
produced by the claimant or by the respondent.  
[115] As the Board has already noted, no expertise was claimed for Mr. Ryle in  
relation to the possible effects of salt spray upon blueberry production. For example, a review of his  
curriculum vitae indicates that blueberries in general are not mentioned, much less research into  
specific topics relating to them, such as the effects of salt spray. On the other hand, Dr. Eaton=s  
blueberry experience extends back more than 28 years, and includes research which is directly  
focussed upon the effects of salt spray upon blueberries. The Board finds that Dr. Eaton was the  
only person who provided opinion evidence on the subject of the possible effects of salt upon  
blueberries who had any professional qualifications in relation to the topic. As one example, Dr.  
Eaton=s report, an exhibit in the present proceeding, contains in its list of references at the end  
(which is much less extensive than the list of papers in Dr. Eaton=s curriculum vitae) mention of  
seven articles on blueberry production which were either written by Dr. Eaton or co-written by him.  
Four of these refer specifically in their titles to highway de-icing salt and its possible effects upon  
blueberry production: the first, by Eaton, Hoyle and King in 1999, being the Folly Lake study  
(which shows significant damage to 45 metres from the roadbed, but not at greater distances; the  
second, by Eaton, Hoyle and Calder in 2001, being a study of salt damage in Strathlorne in Inverness  
County; the third, Eaton and Hoyle 2002, in preparation; and the fourth, Eaton, Sanderson and Hoyle  
2002 article. The Eaton and Hoyle 2002 article specifically deals with the Cobequid Pass.  
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[116] Dr. Eaton=s curriculum vitae shows several pages of research projects, going  
back as far as the 1970's, with many of them in the 1990's. At least 40 of these deal with  
experimentation trials and other research in relation to blueberries, including such things as the  
effect of snow, deicing salt, and other factors. His curriculum vitae lists nine articles published in  
refereed journals on the subject of blueberries, 18 articles on blueberry production in non-refereed  
journals, other participation in committees researching blueberries, and authorship of various reports  
and chapters in books, and various reports prepared for academic organizations, and government.  
Dr. Eaton has also received research grants on a wide range of topics relating to blueberries since the  
mid 1970's, with contracts continuing through to 2005. In 1996, after a long career at the Nova  
Scotia Agricultural College which culminated in his becoming head of the Department of Biology,  
he was appointed the AOxford Frozen Foods Ltd. Research Professor@ at the College. Oxford  
Frozen Foods, headquartered in Oxford, Nova Scotia, is the largest blueberry processor in the world.  
Dr. Eaton=s activities are not purely academic in nature, but intended to have practical application  
in the blueberry industry: his reports have been relied on by industry clients, such as Bragg Lumber  
Ltd. (an affiliate of Oxford Frozen Foods, with a major involvement in blueberry operations), and  
the Nova Scotia Blueberry Institute.  
[117] Dr. Eaton=s evidence left no doubt that, in his opinion, highway de-icing salt  
can and has caused severe damage to wild blueberry plants. He referred to both research which he  
himself has done and to research by others in which such damage was found to have happened.  
[118] Particularly in his oral evidence, Dr. Eaton explained the specific way in  
which such damage to blueberry plants is believed to occur. Runoff from highways does not, it  
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seems, in general, present a problem. Where salt damage does occur, it involves direct exposure of  
blueberry fruit buds to salt spray, leading to their desiccation, or drying, with most of the damage,  
where it occurs, happening during the winter and the early spring. Blueberries are usually harvested  
on a two-year cycle, being pruned back to ground level by mowing or burning in the first year, after  
which they grow vegetatively, with fruit buds being formed which the blueberry bushes support  
above ground level; it is in this particular period that blueberry plants are susceptible to salt spray  
damage, provided cold weather is likewise present.  
[119] While Dr. Eaton was clear that it is possible for salt spray from highway de-  
icing salt to damage blueberry plants, he was equally clear that the evidence indicates such damage  
does not usually, in practice, occur. Whether it does or not occur is, according to his evidence, a  
matter entirely related to local conditions.  
[120] Dr. Eaton testified that, to his knowledge, quite a large number of fields in  
Nova Scotia are Avery close@ to two-lane highways, but their owners have not reported any salt  
spray damage to blueberry plants. In the view of the Board, the absence of complaints would not  
necessarily mean an absence of damage C some producers, for example, might perhaps be oblivious  
to any harm being sustained. On this point, however, Dr. Eaton alluded to Asophisticated@  
producers making no complaints of salt damage, even though their fields are Areally right close to  
the road.@ He also noted the proximity of one particular field with which he has been familiar for  
many years, located on the east side of the Highway 104 in the Wentworth Valley. The field is  
separated from the roadbed simply by a ditch, so that blueberries were growing within 20 feet of the  
road, and yet Dr. Eaton had never in his observations of that field over many years seen any  
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evidence of salt damage. In contrast, at Folly Mountain, only a few kilometres away, he had found,  
and reported on, salt damage in blueberry plants.  
[121] It was his opinion that the research and the practical experience in the industry  
was consistent with his findings. He referred to an article by Lumis article (Exhibit H-44), which  
explores damage to plants and trees caused by de-icing salt used on highways in Ontario. While the  
article recounts incidents of salt spray damage, and says that:  
. . . the above observations suggest that salt spray whipped up by traffic is being blown onto  
plants adjacent to roadways and causing injury . . .  
the article also goes on to caution:  
All injury which is evident or presumed on trees and shrubs growing near the roadside is not  
due to salt. Only after thoroughly evaluating the injury symptoms and . . . all the  
environmental conditions at a particular site can highway salt be singled out as the most  
probable cause of damage. Salt is only one of numerous environmental and plant factors  
which cause injury or death of roadside vegetation.  
The Lumis article also notes that it appears different species of trees and shrubs have  
different levels of resistance to airborne highway salt spray.  
[122] Citing his 1999 Folly Mountain Report and his 2001 Strathlorne Report, Dr.  
Eaton asserted in his written report for the present proceedings, and affirmed in his oral evidence,  
that it was his opinion that special conditions must exist for salt damage to blueberry fields to occur.  
Conditions which Dr. Eaton considered might lead, in certain combinations, to salt spray damage  
included high levels of salt application, high truck traffic, strong prevailing winds across a highway  
into a blueberry field, the amount of light or non-existent snow cover, a field elevation below the  
adjoining road, high speeds and the type of vegetation. Dr. Eaton=s evidence also noted that de-  
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icing salt was unlikely to cause plant damage through accumulation in soils at Atlantic Canada  
Abecause of high rainfall in the area which dilutes salt solutions and leaches ions well down into the  
soil profiles.@  
[123] Dr. Eaton contrasted the Cobequid Pass Highway, a relatively high traffic  
road by Maritime standards, with highways in Ontario such as the 401 or QEW, with much higher  
traffic counts in which vehicles are Apacked cheek to jowl.@ He referred to an Ontario study in  
which significant salt deposits next to Athese very, very busy highways@ occurred to a maximum of  
37 metres at 100 km/h. Noting the effect of speed, he said that, at 50 km/h, the same study showed  
salt deposits were to 13 metres only. At the Folly Lake and Strathlorne sites, at which he had  
conducted studies and about which he had written reports, he concluded that heavy traffic, high  
levels of salt application, and strong prevailing winds across the highway onto the nearby blueberry  
fields caused significant salt damage and reduced production.  
[124] Dr. Eaton was interested in what problems, if any, might arise in the Cobequid  
Pass as a result of the very large quantity of salt being applied to the highway during the winter, and  
conducted a lengthy study, the details of which he explained in his oral evidence, of salt deposition  
and its possible effects. There were no blueberry fields in the claimant=s Westchester II East  
property. In the claimant=s Westchester II West property, the existing blueberry field is on the west  
side of the Westchester II West property, i.e., it is not close to the Cobequid Pass right-of-way, and  
outside even the 100 metre salt spray protection strip which the Ryle Report claims to be necessary.  
Dr. Eaton used the Rushton blueberry field, just south of Westchester II East, and close to the east  
side of the Cobequid Pass right-of-way, for his tests. The field which he chose is accessed by the  
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government land access road. The right-of-way for the Cobequid Pass took a portion of the Rushton  
field, the highway being, according to Dr. Eaton=s oral evidence, only about 36 or 37 metres from  
the edge of the Rushton field. The Rushton experiment (to which he also alluded in his evidence in  
Johnson) involved placing test equipment in the Rushton fields adjoining the highway. Dr. Eaton  
kept logs of the amounts of salt detected at the various observation points he had set up on the  
Rushton fields. He considered that various factors present at the Rushton field might well lead to the  
kind of salt damage which Dr. Eaton observed at Folly Mountain. Dr. Eaton said that, in his Folly  
Mountain study, there was significant salt damage, but not at distances over 45 metres from the  
roadbed. As respondent=s counsel points out, Dr. Eaton, in his evidence, and Andrew King in  
Exhibit H-41, noted that there was little or no snow cover at the time of the 1992 work, which  
increases the likelihood of winter injury.  
[125] Dr. Eaton had hypothesized that the Rushton field was one in which, if salt  
damage were to occur in the area, it would occur there. His studies of the field led him to conclude,  
however, that there was no salt spray damage to blueberry plants in the Rushton fields and there  
were Ajust traces@ of salt 30 to 35 metres from the road. Dr. Eaton said that he considered his  
Rushton conclusions to be applicable to the claimant=s Westchester II East property, given the  
proximity of the properties (200 to 300 metres away).  
[126] Dr. Eaton views prevailing winds as being an important factor in determining  
whether salt spray damage occurs to blueberry plants, and explored the issue of wind direction in  
some detail in the context of his 1999 Folly Mountain report and 2001 Strathlorne report. As part of  
the Rushton study, Dr. Eaton had to make various visits to the site during the winter season. He said  
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that the orientation of the prevailing wind to the highway for Westchester II would be about the  
same as for the Rushton field, although he acknowledged there was a small bend in the road. He  
said his wind observations, at the Rushton property and the adjoining highway, showed the wind  
coming down the highway, from a direction he characterized as north. In cross-examining Dr.  
Eaton, counsel for the claimant suggested to him that the Nolan Davis Report said the prevailing  
winds on the Cobequid Pass Highway are westerly and northwesterly in the winter. The Board has  
in evidence only excerpts of the Nolan Davis Report, an environmental study done in preparation for  
the Cobequid Pass Highway. These excerpts do not include any reference to prevailing winds. In  
response to this question from counsel, Dr. Eaton suggested that the environmental data referred to  
in the Nolan Davis Report would have been obtained from weather stations not located in the area of  
the subject property, as opposed to Dr. Eaton=s actual on site observations.  
[127] The Board infers that wind conditions for a particular stretch of highway or  
particular fields can be affected by the local conditions, topographic and otherwise. The Board notes  
that Exhibit H-20, a survey plan showing the location of the proposed Cobequid Pass Highway,  
Westchester II West, Westchester II East, and the Bogle property, among others, indicates that the  
highway passes through the claimant=s Westchester lands in approximately a northwesterly  
direction. The Board thus sees Dr. Eaton=s onsite observations of the wind direction (down the  
highway, which he characterized as northerly) as being roughly consistent with the statement about  
the winds for the overall Cobequid Pass Highway area which were attributed to the Nolan Davis  
Report by counsel for the claimant in the course of his examination of Dr. Eaton. To the extent that  
the wind direction as observed by Dr. Eaton may be different from that asserted in the Nolan Davis  
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Report, the Board accepts Dr. Eaton=s observations of actual onsite winds in the subject area, as  
opposed to the generalizations for the entire length of the Cobequid Pass in the Nolan Davis Report.  
[128] As an additional point which was not discussed during the hearing, the Board  
notes in passing that little, if any, of the submissions or evidence before the Board drew any  
distinction between true north and magnetic north. The difference between the two can, in Nova  
Scotia, be significant, sometimes approaching, or exceeding, 20 degrees. The Board merely notes  
this as an additional factor which may make references to wind direction such as Anorthwest@ even  
less precise than they may otherwise appear; the Board has, however, placed no weight upon this  
factor in reaching its conclusions in this proceeding.  
[129] Taking into account all of the evidence, including, in particular, Dr. Eaton=s  
experience in conducting other experiments and observations (such as Folly Lake and Strathlorne) in  
which he concluded wind direction and strength was important, his actual observations of winds in  
the winter at the Rushton property very close to Westchester II East, the notes which he kept of his  
visits to the fields in question, and the Nolan Davis Report, the Board finds that the wind direction in  
winter for Westchester II East and Westchester II West, next to the Cobequid Pass Highway, is  
generally down the highway (i.e., parallel to it and generally from the northwest); to the extent that a  
cross wind may occur, it would generally blow toward the east side of the highway, i.e., into  
Westchester II East, rather than Westchester II West.  
[130] Dr. Eaton contrasted a divided highway (double carriageway) situation with a  
single highway (single carriageway). In a single carriageway, such as that at Folly Mountain, Dr.  
Eaton suggested that trucks passing close together in opposite directions may lead to a swirling  
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effect in which salt spray pushed up by one truck can be kept airborne (and thus have an extended  
opportunity to travel into adjoining lands on either side of the road) by a truck going in the opposite  
direction.  
[131] He considered that divided highways had a further distinction, in that salt  
spray, from one carriageway would not, in his view, be likely to drift much past the surface of the  
opposite carriageway and into adjacent property, because salt from one carriageway, if carried  
toward the other, would be largely deposited on the median between the carriageways and on the  
opposite carriageway itself, thus providing a measure of protection not present in a single  
carriageway highway. On this point, the Board notes that the median between the two carriageways  
is 98.4 feet, or 30 metres, as measured from the centre line of each carriageway.  
[132] As a related point, the Board also notes that the traditional width for a  
standard highway right-of-way is 66 feet, or 20.1 metres; in contrast, the width of the Cobequid Pass  
right-of-way through the Westchester II property is, at its narrowest point, about 436 feet (or 133  
metres).  
[133] With particular respect to the Bogle and Westchester II West properties, Dr.  
Eaton noted that the western (southbound) carriageway (i.e., the one adjoining the Bogle land and  
Westchester II West) is uphill, with trucks operating on that slope driving so slowly as to be using  
emergency flashers.  
[134] The Eaton Report states that the Bogle/Claimant=s fields in Westchester II  
West are located well above (anywhere from 30 to 50 feet, or 10 to 15 metres) the roadbed of the  
divided highway. In Dr. Eaton=s opinion, it would be Ahighly unlikely@ that any significant amount  
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of de-icing road salt would reach such elevated fields. He noted that the issue of elevation of a field,  
above or below a highway, is also one of the factors referred to in the Lumis article.  
[135] Dr. Eaton personally inspected the Bogle field, and the claimant=s adjacent  
field in Westchester II West, in 2002. The Bogle field runs to the edge of a bluff above the highway,  
but Dr. Eaton found no damage to the blueberry plants growing there.  
[136] The claimant=s Westchester II West property has a total area of about 24.8  
acres, with an 8.08 acre blueberry field in the western most part of the property. The remaining  
portion of Westchester II West (comprising, the Board finds elsewhere in this decision, 16.72 acres)  
consists largely of woodland, extending from the existing blueberry field to the western boundary of  
the Cobequid Pass Highway. While some of this 16.72 acres lies within Mr. Ryle=s claimed salt  
spray protection strip, most of it does not. The claimant has not, in the years since the expropriation,  
begun development of these woodlands into blueberry fields, although it has begun developing new  
blueberry fields in other of its properties. A reason asserted by the claimant is that salt spray would  
be a threat to new fields in the Westchester II West property. Based on the various factors which Dr.  
Eaton identified, however (height above the highway, decreased vehicle speed, wind direction down  
the highway (direction generally down the highway or slightly to the east), and a lack of any  
observed plant damage in the Bogle field, which is much closer to the Cobequid Pass Highway than  
the Westchester II West blueberry field is, it was Dr. Eaton=s opinion that the Westchester II West  
field could be extended right to the edge of the Cobequid Pass right-of-way with Alittle fear@ of  
encountering spray damage.  
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[137] In short, Dr. Eaton concluded that salt spray protection strips were  
unnecessary for the west side of the Cobequid Pass right-of-way. On the east side of the right-of-  
way, Dr. Eaton suggested that a Amaximum@ salt spray protection strip of 50 metres would be  
sufficient to protect fields there C although his recommendation for such a strip seemed more of a  
precautionary measure than a requirement.  
[138] The claimant=s counsel urges that the Eaton Report is contrary to the opinions  
of TPW, the Department of Agriculture=s research, the Environmental Council that reviewed the  
environmental impact of the Cobequid Pass Highway, and of Nolan Davis. With respect, the Board  
does not, on the balance of probabilities, agree with any of these assertions.  
[139] Exhibit H-12 (a survey plan produced for TPW which shows the claimant=s  
Westchester II property as well as the Bogle lands), shows in the Bogle lands a dotted line entitled  
ABuffer Zone for Blueberry Field@ which appears to be a little less than 100 metres from the centre  
line of the western carriageway of the Cobequid Pass Highway. Nevertheless, the Board, taking into  
account the evidence of Mr. Bieren and the documentary evidence before it, concludes that TPW has  
no policy with respect to any distances to be kept between highways and blueberry fields, although  
TPW worked closely on the Cobequid Pass Highway project with the Department of Agriculture.  
TPW accepts that salt spray can cause damage to berry fields, and, in some instances, does. The  
Department does not, however, accept that salt spray always damages blueberry fields, much less  
does it have a policy establishing any fixed requirement for salt spray protection strips adjacent to  
any highway, including the Cobequid Pass Highway.  
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[140] With respect to the Department of Agriculture, much of that department=s  
research into the effects of salt spray upon blueberry plants, as referred to in this proceeding, was  
either carried out by Dr. Eaton, or involved him in a key role. Dr. Eaton does not interpret this  
material, nor does the Board, as mandating salt spray protection strips next to highways adjoining  
agricultural (and, in particular, blueberry) properties, even highways such as the Cobequid Pass  
Highway. The Board considers that Dr. Eaton=s interpretations of the meaning of his own salt spray  
research should be given greater weight than the opinions of others who are essentially unqualified  
in the area. Against Dr. Eaton=s view of the meaning of his research, the claimant presents evidence  
which includes Mr. Ryle=s report and testimony, Mr. Harrison=s beliefs (which Mr. Harrison did  
not relate to any perceived damage to blueberry plants), and news reports. With respect to the latter  
point, Mr. Ryle=s testimony referred to an interview (Exhibit H-42) in the media with Andrew King,  
a technician, concerning a study done at Folly Mountain Road (referred to in more detail in Dr.  
Eaton=s evidence discussed elsewhere in this decision). Mr. Ryle said that the interview referred to  
Aobvious@ salt damage 300 or 400 feet back from the road, describing Mr. King=s comments as  
being of Agreat relevance,@ Apretty compelling,@ and meaning that the 100 metre protection strip  
which Mr. Ryle advocated was Afairly conservative.@ The Board notes, however, that Mr. King, in  
the interview quoted by Mr. Ryle, also said that:  
I=m not qualified to make any conclusions on it . . . I=m not the person to interpret the data . .  
.
The Board gives little weight to the conclusions, implied or express, respecting salt spray  
and blueberries, in the interview quoted by Mr. Ryle, or in the conclusions which he  
asserted he drew from it.  
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[141] With respect to the Environmental Council, the Board sees nothing in the  
documentation filed with the Board, which would lead it to conclude, on the balance of probabilities,  
that the Council ever took a position in relation to salt spray of the type advocated by Mr. Ryle, i.e.,  
of an assumed automatic need for a salt spray protection strip of fixed dimensions on both sides of a  
road. The Council simply identified salt spray as an issue to be considered.  
[142] Likewise, the excerpts from the Nolan Davis Report (AEnvironmental  
Assessment of Highway 104 Thomson Station to Masstown,@ produced in 1992 by Davis  
Archeological Consultants Limited and CEF Consultants Limited), referred to:  
. . . potentially significant impacts of concern include the effects of de-icing chemicals (ie. rock  
salt) on surface water, agricultural land and possibly wetlands.  
. . .  
The assessment shows that the environmental elements most likely to be impacted, and for  
which there appear to be little or no opportunity to apply mitigation, to be the following:  
. . .  
!
agricultural land, including blueberry fields, in close proximity to the right of way . . .  
Blueberry fields crossed by the alignment centerline (see Figure 6-17) may warrant  
consideration of realignment, given their reported high productivity. If realignment is not  
possible or deemed unwarranted, culvert underpassage should be considered at the two  
southern-most fields to provide access to otherwise isolated field fragments.  
While the report thus suggests that salt spray may have Apotentially significant@ impact and  
that there may be Alittle or no opportunity to apply mitigation,@ the Board sees these  
assertions as being general statements of areas of potential risk, rather an assertion that  
damage will necessarily occur. As such, they are not inconsistent, in the Board=s  
judgment, with Dr. Eaton=s evidence. To the extent that they may be inconsistent, the  
Board merely notes that not only did the drafters of this report not testify, but nothing before  
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the Board indicates their having been qualified in any way to provide expert evidence with  
respect to the potential damage which might be caused by salt spray to blueberry plants.  
[143] Despite his disavowal of any expertise with respect to the effects of salt spray,  
Mr. Ryle=s vigorous advocacy in favour of salt spray protection strips was apparent not just in the  
content, but in the tone, of his oral evidence. In essence, the claimant=s position, as advocated by  
Mr. Ryle, is that salt spray protection strips, 100 metres in width as measured from the centre line of  
the carriageway, must C as a matter of course C be deemed necessary on each side of the Cobequid  
Pass Highway right-of-way. In essence, the Board saw the Ryle position as advocating that such salt  
spray protection strips must always be regarded as necessary, on both sides of the highway, without  
any need for significant supporting evidence which relates to the site in question.  
[144] Dr. Eaton=s position was to the contrary: whether a salt spray protection strip  
is necessary, is, according to his evidence, a matter which is entirely site dependent, i.e., the need, or  
lack thereof, for a salt spray protection strip relates to the characteristics of the actual site and of the  
highway through it, including such things as the relative elevation of the property in relation to the  
highway, the prevailing winds, the amount of salt used, the type of traffic, and whether or not the  
highway is a divided one. Further, if a salt spray protection strip is in fact necessary at a particular  
site (and Dr. Eaton=s evidence was clear that, while it generally is not, it sometimes is), then the  
characteristics of such a strip (including its width) would likewise be site dependent. The Board saw  
Dr. Eaton as relating his evidence, and in particular, his conclusions to: first, research, as reported in  
articles in which he had participated, or which had been produced by others, which included  
practical experimental experience at various places in Nova Scotia in which he himself had carried  
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out investigations into the effects of salt spray; and second, to actual observations at or around the  
subject property C for example, his inspection of the blueberry plants on the Bogle lands close to the  
west side of the highway (which were unharmed); his observations of actual wind direction in the  
Cobequid Pass near Westchester II (down rather than across the highway); his observation of the  
relative height of the Westchester II property on either side of the right-of-way (with the Westchester  
II West and Bogle lands being significantly elevated above the roadbed); and test results for the  
presence of salt spray, and salt spray damage in the Rushton property, close to the east side of the  
highway, and just south of Westchester II East (only a trace of salt detected, and no damage to  
blueberry plants).  
[145] On the subject of salt spray protection strips, the Board, having heard and  
observed the witnesses giving their evidence, having considered the relative qualifications of each,  
and having considered the content of their evidence, prefers the evidence of Dr. Eaton to that of Mr.  
Ryle. It gives much greater weight to the evidence of Dr. Eaton, and very little C essentially none C  
to that of Mr. Ryle.  
[146] On the evidence before it, the Board finds that, while salt spray can damage  
blueberry plants, the necessity or utility of protection strips to protect against salt spray damage is a  
matter which should be evaluated in the context of the characteristics of a particular property and of  
the highway adjoining it. The Board will now turn to the specific evidence relating to, first, the west  
side of the right-of-way, and then, the east side of the right-of-way.  
West Side of Right-of-Way  
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[147] The Board will review first the situation of the west side of the right-of-way  
(i.e., the Bogle lands and Westchester II West), and then the situation of the property on the east side  
of the right-of-way (i.e., Westchester II East). On the western side of the right-of-way, the Bogle  
lands and Westchester II West are significantly elevated above the southbound lane of the Cobequid  
Pass Highway. The Board finds, on the balance of probabilities, that a property elevated above the  
adjoining highway is less susceptible to the deposit of salt spray, and the greater the elevation, the  
less probability there is of such deposit. As noted previously, the prevailing winds are generally  
down the highway (i.e., parallel to it), thereby minimizing any deposit of salt spray on the subject  
properties. To the extent that there may be any amount of crosswind at Westchester II, the Board  
has found that it is likely to be toward to the east side of the right-of-way, i.e., away from  
Westchester II West and the Bogle lands and toward Westchester II East. The Board also notes that  
higher speeds are associated with greater amounts of salt spray, but that the western (southbound)  
carriageway, which abuts the Bogle lands and Westchester II West, is steeply uphill, yielding  
reduced traffic speeds, particularly for heavy trucks.  
[148] Mr. Harrison asserted there had been reduced production in Westchester II  
West and the Bogle lands since the highway was built, but agreed that he could not say what factors  
might have led to this occurring (such as weather, or the claimant=s development work, such as  
levelling and rock picking). The Board also notes that Mr. Harrison (although he testified that he  
has sometimes Atasted@ salt in the air while visiting the Bogle lands) acknowledged that he  
continues to harvest blueberries in the 2.14 hectare blueberry field in the Bogle property, right up to  
the right-of-way of the Cobequid Pass Highway.  
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[149] It is clear from the evidence overall that the rate of production of blueberries  
can be affected by many factors other than the deposit of salt. Development work, such as land  
levelling and rock picking, can reduce productivity in the years subsequent to the work being done.  
Weather is also a key factor. This point is made in Dr. Eaton=s evidence, and is also found  
elsewhere in the evidence before the Board, such as the following comment in the 2000 Situation  
Report:  
Years of unusually high production have been mainly due to a particularly favorable growing  
season with an abundance of native pollinators and a good supply of moisture at critical times  
during the growing season. The one year of exceptionally low production (1968) was due to  
a very late spring frost combined with a prolonged summer drought.  
In this regard, the Board notes that a table appearing elsewhere in this decision (in the part  
entitled APounds Per Acre@) shows significant year-to-year variations in pounds per acre  
production of blueberries generally: for example, in comparing the yields per acre for the  
small, 6 to 8 acre, field in Westchester II West for the years 1995 and 1993, both being  
years prior to the construction of the highway, and prior to the claimant=s development  
work, one finds that the 1993 yield is less than half that of the 1995 yield.  
[150] Dr. Eaton testified he visited the Bogle lands looking for salt damage to  
blueberry plants, and did not find any such damage, even though that was his specific interest in  
carrying out his inspection. Dr. Eaton has expertise in the area of blueberry production in general  
and in the area of salt spray damage to blueberries in particular. The Board perceived him in the  
course of his evidence as taking, overall, an even-handed approach to the matters before him, and  
notes that he has, in certain instances, found salt spray damage to blueberry plants in other locations,  
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such as at Folly Mountain and Strathlorne. The Board accepts Dr. Eaton=s evidence with respect to  
the state of the blueberry plants on the Bogle property.  
[151] The Board considers that there is a burden of proof upon a claimant in an  
expropriation. Counsel for the respondent Crown provided specific evidence, related to the subject  
property, about whether damage has occurred or is likely to occur, including Dr. Eaton=s  
observations of blueberry plants which were undamaged on the Bogle property near the highway,  
which were consistent with his findings in the Rushton property on the east side of the highway just  
south of Westchester II East. It was open to the claimant to, if it had wished, supply contrary  
evidence of equal quality C for example, showing salt contamination of, or of visible damage to,  
blueberry plants or other vegetation on or near the subject property. The potential utility of such  
evidence was known to Mr. Ryle, given: his evidence (along with Mr. Gervason) in the Coldwell  
case; his awareness of the plant tissue analysis done by Andrew King in 1992 for Folly Lake  
(referred to by Mr. Ryle in his evidence); and, finally, Mr. Ryle=s awareness of the Schenck case,  
and his testimony that he had referred to Schenck in the preparation of his report in 2001. As  
already noted, an important component of the Schenck case is evidence of test results showing  
actual presence of salt contamination in plant tissue in the subject property, the measured  
concentrations of that contamination, and the physical manifestations of the damage thereby caused.  
There is no such evidence in the present case.  
[152] On the balance of probabilities, the Board finds that the evidence before it  
does not indicate there has been salt spray damage to the blueberry plants in the Bogle property, nor  
that it is likely to occur in future. The Board further finds, on the balance of probabilities, that the  
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evidence before it does not indicate there would be salt spray damage if the claimant were to develop  
Westchester II West further by expanding the existing blueberry field eastward through the present  
woodland toward the western boundary of the Cobequid Pass Highway right-of-way. In short, the  
Board finds that salt spray damage to blueberry plants in the Bogle lands or in Westchester II West  
has not occurred, and is not likely to occur.  
[153] Taking into account all of the evidence, the Board concludes that no salt spray  
protection strip is required on the west side of the right-of-way of the Cobequid Pass Highway,  
whether for the Bogle or the Westchester II West properties, and that, accordingly, no compensation  
is payable to the claimant in relation to such a strip.  
East Side of Right-of-Way  
[154] Turning from the west side of the Cobequid Pass Highway to the east, the  
Board finds that the evidence before it does not indicate that the Westchester II East property  
abutting the highway enjoys the advantage of being elevated above the height of the carriageways.  
This is in contrast to the Bogle and Westchester II West properties. Further, traffic on the  
northbound carriageway, the one nearest Westchester II East, goes down a steep hill, so that heavy  
trucks can be expected to be travelling at higher speeds than those in the southbound western  
carriageway. Moreover, the Board finds, on the evidence before it, and in particular, the evidence of  
Dr. Eaton, as well as the Nolan Davis Report, that the wind direction, to the extent that there may be  
a cross wind across the highway, will be toward Westchester II East.  
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[155] Despite the presence of these adverse factors, Dr. Eaton=s experiments found,  
in essence, only a trace of salt, and no damage whatever to blueberry plants in the Rushton field,  
located very close to Westchester II East. This is a fact to which the Board gives considerable  
weight. Despite his finding that there was no damage to blueberry plants in the Rushton field, Dr.  
Eaton, in the present case, suggested that a salt spray protection strip to a maximum of 50 metres in  
width be considered for the east side of the eastern (northbound) carriageway. The Board does note  
that the snow was relatively deep during Dr. Eaton=s Rushton study. The Board concludes from the  
evidence that relatively light snow cover can lead to increased winter damage to plants for non-salt  
spray related reasons, and can also lead to increased risk of damage relating to salt spray. The site of  
Westchester II is on relatively high ground in the Cobequid Mountains, but, if light snow cover were  
ever to be encountered in a particular winter (which, whatever its probability, the Board cannot  
regard as impossible), the risk of salt spray damage could be greater.  
[156] Although it accepts Dr. Eaton=s recommendation for a salt spray protection  
strip on the east side of the carriageway, the Board does not consider that Dr. Eaton=s  
recommendation in support of the need for such a strip, to a maximum of 50 metres in width was  
particularly strong, nor was the evidence to which he related it. In any event, on the evidence before  
it, the Board considers, on the balance of probabilities, that a salt spray protection strip on the east  
side of the Cobequid Pass Highway greater than 50 metres in width is not justifiable. That being the  
case, the Board considers further analysis of the point to be unnecessary: the reason is that the Board  
finds the minimum distance from the centre line of the eastern (northbound) carriageway of the  
Cobequid Pass Highway to the edge of the land expropriated is 70 metres. If the Board accepts that  
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a salt spray protection strip 50 metres wide is appropriate on the east side of the Cobequid Pass  
Highway right-of-way, such a strip C whether one measures 50 metres from the centre line of the  
carriageway, or from the edge of the pavement C would be inside the lands already expropriated by  
the Crown. In other words, a salt spray protection strip 50 metres wide lies within the right-of-way,  
and would not overlap any of the lands still belonging to the claimant, on the east side of the right-  
of-way.  
[157] Accordingly, the Board finds that no compensation for actual or potential  
damage by salt spray is payable in relation to the east side of the right-of-way, assuming a 50 metre  
wide salt spray protection strip on the eastern side is necessary.  
Incorrect Salt Spray Protection Areas as Calculated by Mr. Ryle  
[158] While noting that Mr. Ryle had reduced his claimed salt spray protection area  
from 8.75 acres in his report to 7.72 acres in Exhibit H-69, submitted later in the hearing process,  
counsel for the respondent Crown nevertheless suggested that the areas for salt spray protection  
strips claimed by Mr. Ryle were Ainaccurate and overstated.@ He noted, for example, that Mr. Ryle,  
in Exhibit H-69, used a width of 329 metres (which he says he took from Mr. Omond=s appraisal),  
rather than using the actual surveys from Exhibit H-12 and Exhibit H-20. Exhibit H-12 shows the  
width of the property as, at most, 300 metres on one side, and 278 metres on the other; Exhibit H-20  
shows the width of the property on the western side of the highway as 302 metres. While the Board  
accepts the suggestions by counsel for the respondent Crown that Mr. Ryle=s recalculations do  
indeed appear to be overstated, the Board makes no further findings in relation to this point: given  
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the Board=s conclusion that salt spray protection strips on either side of the Cobequid Pass Highway  
right-of-way are unnecessary, the point becomes moot.  
Even if there is no evidence of actual salt spray damage, has market value been  
reduced by salt spray?  
[159] The Board has found that, on the balance of probabilities, there is insufficient  
evidence that salt spray damage to vegetation in any of the subject lands (the Bogle property, the  
Westchester II West property, and the Westchester II East property) has occurred or will occur.  
Nevertheless, it is conceivable that the market=s perception of salt spray could have a negative  
effect on market value even if there is no reasonable probability of actual damage to blueberry  
plants. The Board will now explore this issue in the context of Mr. Omond=s evidence.  
[160] While Mr. Omond claimed no expertise with respect to the effects of salt  
spray, he assumed a reduction in market value arising from salt spray. In both his original report of  
December 23, 1996 and his Aaddendum/update@ of October 28, 2002, Mr. Omond recommended  
compensation for injurious affection to the property as a result of salt spray in both his original  
report of December 23, 1996, and his revised report of October 28, 2002: having valued potential  
blueberry land at $900 per acre, he considered the value of land inside the salt spray protection strips  
to be reduced by $800 per acre. He assumed a necessity for a buffer based upon the information he  
had received, although noting that its width:  
whether 100 feet or 120 feet or 150 feet is a matter . . . beyond my expertise . . . Mr. Harrison  
believed that he would need 100 feet. I didn=t think it was unreasonable.  
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[161] In his original report dated December 20, 1996, Mr. Omond says A. . . it  
would seem to me that a prudent operator would want to buffer his crops wherever possible from  
major highways in order to minimize the effects.@ In applying a protection strip, Mr. Omond  
referred to having relied upon Mr. Harrison=s comments, reinforced by a communication with the  
Department of Agriculture, which led him to believe, as he states at paragraph 12.1 of his report, that  
salt spray is Acapable of damaging blueberry crops.@ His report also refers to Athe need to maintain  
a buffer of trees,@ so that the owner would lose Athe production potential of 5 acres (2 ha.), for  
which he should be compensated.@ He considered that a buffer was appropriate because he  
understood salt spray to be a Arecognized concern,@ saying that, if that was the case, then a prudent  
person who understood and recognized the salt spray issue would want a buffer. The Board takes  
these statements by Mr. Omond as assumptions which formed part of the basis upon which he  
prepared his report.  
[162] Having reflected on this point at length, the Board has, with some hesitation  
(given, in particular, Mr. Omond=s status as the only accredited appraiser to have given evidence in  
this proceeding, and to his having done so on behalf of the Crown, rather than the claimant),  
concluded it should give little weight to his conclusions with respect to effects upon market value of  
salt spray (as illustrated by his reduction of assumed market value, from $900 per acre to $100 per  
acre, of lands with blueberry potential in 100 foot strips adjacent to either side of the right-of-way).  
There are two principal reasons for this conclusion, which the Board will deal with in turn: the first  
relates to the lack of any comparable sales, or equally significant or persuasive evidence, to support  
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such a conclusion; the second relates to a negative inference which the Board draws from the  
assumptions inherent in Mr. Omond=s view of the size of such strips.  
[163] With respect to the first point, Mr. Omond provided no evidence of any sales  
in which the price of blueberry land was reduced by its proximity to a highway upon which de-icing  
salt was being used. In the Board=s view, appraisers sometimes must make adjustments to sale  
prices for a condition or conditions for which no actual comparables exist. If this practice was not  
followed, it might often be difficult to find any usable comparables at all. The Board, however, sees  
the question of the purported effects of salt spray upon market value as being of such fundamental  
importance in this proceeding that, if Mr. Omond=s opinion on it is to be given significant weight,  
there should be at least some evidence of some sale in which the price was affected in the manner  
hypothesized by Mr. Omond. At noted, however, there is no reference in Mr. Omond=s analysis of  
any sales data in which salt spray was a factor. His view appears to be based, at least in part, upon  
his acceptance of Mr. Harrison=s assertions to him in 1996 (at least one year before the highway  
was finished) that he expected salt spray protection strips, 100 feet in width, would be needed on  
each side of the highway. It also appears to have arisen from Mr. Omond=s communication with  
the Department of Agriculture, in which he was told that salt spray is Acapable of damaging  
blueberry crops.@  
[164] The second point which causes the Board to give less weight to Mr. Omond=s  
reduction in market value arising from a perceived need for salt spray protection strips relates to his  
assumptions about the size and location of such strips. In brief, Mr. Omond accepted not merely Mr.  
Harrison=s assertion of a need for two 100 foot wide salt spray protection strips on each side of the  
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highway, but also, in the view of the Board (and also, in the view of Mr. Ryle), assumed that these  
strips, each 100 feet in width, would simply be appended to each side of the right-of-way acquired  
by the Crown for the Cobequid Pass Highway. Even if one were to assume, for the purposes of this  
present analysis only, that such 100 foot strips were necessary, Mr. Omond=s approach appears to  
take no account of what the width of the right-of-way might be, or whether the two carriageways  
would be located in its centre.  
[165] As it happens, the two carriageways of the Cobequid Pass Highway do not  
pass through the centre of the right-of-way: the western edge of the western (southbound)  
carriageway is closer to the western side of the right-of-way than the eastern (northbound)  
carriageway is to the eastern side. Nothing in Mr. Omond=s evidence caused the Board to consider  
that he regarded this to be a factor of any importance, or was even aware of it. If the two  
carriageways had been still closer to the west side of the right-of-way than they actually are, and still  
farther from the east side, nothing in Mr. Omond=s evidence causes the Board to believe that he  
would have done anything other than, once again, attach protection strips of identical width (100  
feet) to both sides of the right-of-way. In the view of the Board, this approach by Mr. Omond is  
unpersuasive: if, as Mr. Omond believed, a 100 foot salt spray protection strip is necessary, but one  
carriageway were to be 100 feet more distant from the nearest edge of the right-of-way than was the  
other carriageway, then why would any salt spray protection strip be necessary at all for the  
carriageway which is more distant from the edge of the right-of-way? Again, if Mr. Omond had  
provided evidence that, whether apparently illogical or not, the market perceives such a need, the  
Board would have given due weight to this; no such evidence, however, was produced.  
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[166] Related to his ignoring the issue of whether or not the strips of pavement  
were, or were not (as is the present case) centred in the right-of-way, nothing in Mr. Omond=s  
evidence causes the Board to believe that he took the width of the right-of-way into account. For  
example, the width of the Cobequid Pass right-of-way is not a constant C variations in its width can  
be seen in the survey material which relates just to the relatively short portion passing through or  
near the claimant=s property. One might reasonably conclude that, at a certain point, increases in  
width would reduce or eliminate any need, whether merely perceived or otherwise, for salt spray  
protection strips along the edges of the right-of-way. As the Board has noted previously, while the  
traditional width for a highway right-of-way is 66 feet, the minimum width of the Cobequid Pass  
Highway right-of-way as it passes through Westchester II is 436.4 feet. Nothing in Mr. Omond=s  
evidence causes the Board to believe that Mr. Omond considered the width of the right-of-way to be  
a factor, much less that salt spray protection strips might become unnecessary if the minimum  
distance between the edge of a carriageway and the edge of a right-of-way was above a certain  
figure: he simply attached 100 foot wide salt spray protection strips to the eastern and western edges  
of the right-of-way.  
[167] As the Board has already noted, Mr. Omond is the only qualified appraiser to  
have testified in the present proceeding for either party. While the Board has, in general, given  
considerable weight to most of Mr. Omond=s opinions, it nevertheless finds that little weight should  
be given to his conclusions with respect to the effect upon market value of salt spray use on the  
Cobequid Pass Highway.  
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[168] As previously noted, the Board has concluded that salt spray protection strips  
are unnecessary on the west side of the Cobequid Pass Highway right-of-way, and that a salt spray  
protection strip of no more than 50 metres would be necessary on the east side (with that strip lying  
entirely in the right-of-way).  
[169] The Board concludes that Mr. Omond=s use of 100 foot strips on both sides  
of the right-of-way arose from his adoption of assumptions for which there were, in the Board=s  
respectful view, insufficient foundation, when viewed in the context of the much greater quantity,  
quality, and scope of evidence on the topic of which the Board has had the benefit in the course of  
this proceeding. The Board, accordingly, gives little weight to this aspect of Mr. Omond=s  
conclusions.  
[170] Taking into account all of the evidence, the Board finds that there is not  
sufficient evidence for it to conclude, on the balance of probabilities, that the market value of land in  
strips 100 feet wide on either side of the right-of-way is reduced as a result of the application of de-  
icing salt to the Cobequid Pass Highway; more particularly, the Board concludes that, on the balance  
of probabilities, there is insufficient evidence for it to conclude that the use of de-icing salt on the  
Cobequid Pass Highway affects the market value of any property in Westchester II West and East.  
[171] In reaching this conclusion, the Board has been conscious of the dangers  
inherent in a tribunal choosing to adopt a position which is not that of either expert testifying before  
it. These dangers are perhaps well illustrated by Nova Scotia (Attorney General) v. L.E. Powell  
Property Ltd., [1995] N.S.J. 343, at paragraph 30. In Powell, the Board found that injurious  
affection had occurred, even though Mr. Omond (who had given evidence in that proceeding as  
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well) and Lee Weatherby, a qualified appraiser retained by the claimant, found that there was none.  
In rejecting the Board=s finding, the Court of Appeal stated, at paragraph 33 that there was A. . . no  
evidence to justify the conclusions reached by the Board@ that injurious affection applied to the area  
of the property in question. Having reflected on the point at length, the Board is satisfied that, in the  
present instance, its conclusion, while not consistent with that of Mr. Omond (and most emphatically  
not with that of Mr. Ryle), is consistent with the evidence before it, and the facts as the Board has  
found them to be.  
[172] Turning now to the Bogle lands, the Board notes that the Omond Report does  
not refer to any interest of, or related loss on the part of the claimant, in the Bogle lands, Mr. Omond  
never having received instructions to do a valuation of any leasehold interest in the Bogle lands,  
whether with his original report of 1996, or his subsequent report in October of 2002. In the  
circumstances, however, the Board makes a similar finding with respect to salt spray having no  
effect upon the market value of the remaining Bogle property and no effect upon any leasehold  
interests of the claimant, or any interests deriving therefrom.  
VII GOVERNMENT LAND ACCESS ROADS  
[173] The claimant asserts, in part, that the government land access roads, because  
they were allegedly not completed until late and allegedly not completed to a standard which permits  
them to be used satisfactorily, cannot be used by the claimant to go from Westchester II West to  
Westchester II East, for purposes of developing the woodland in that area into blueberry fields.  
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Date of Opening of Government Land Access Road  
[174] Around the time of the expropriation, Mr. Harrison and the Crown had  
discussions about the type of access to Westchester II East which the Crown would make available  
from Westchester II West. Mr. Harrison wanted the Crown to build an access road direct from  
Westchester II West under the divided highway to Westchester II East. While this possibility was  
discussed, the Crown ultimately declined to build such an access road at Westchester II, constructing  
instead an access road somewhat to the south, which adds approximately 11 kilometres round trip to  
any visit from Westchester II West to Westchester II East.  
[175] Once expropriation had occurred and construction work had begun, Mr.  
Harrison indicated that he would still have been able to walk across the construction zone from  
Westchester II West to Westchester II East, but indicated he did not consider this to be practical.  
The Board agrees: the presence of surveyors or other workers, even if no real construction work had  
begun, would introduce an element of uncertainty (as to just how long Mr. Harrison would be able to  
move across the right-of-way, what kinds of activities by him would be considered to be acceptable  
to those working on the highway, etc.), which would have a chilling effect upon any real  
consideration of activities which might have involved going from Westchester II West to  
Westchester II East. In short, the Board finds that even the preparatory work associated with the  
construction of the four-lane highway meant that any practical access, direct from Westchester II  
West to Westchester II East was at an end. The evidence before the Board is not particularly clear as  
to just when highway workers first appeared, but the Board sets the date for loss of direct access  
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between Westchester II West and Westchester II East as of December 18, 1995, the date of  
expropriation.  
[176] Thereafter, access from Westchester II West through to Westchester II East  
via the government land access roads could not occur until, obviously, those roads had been  
designed and built. The date of completion of those roads is in dispute.  
[177] The claimant=s written submissions state access:  
Awas denied completely until an access or service road was opened in the summer of 1999.@  
Likewise, Mr. Ryle=s report says that the access road Abecame usable in summer 1999,@  
going on, however, to say that the roads= Adurability is unknown@ and that in places it has  
slopes which Aexceed those normally found on a public highway.@ Elsewhere in his  
evidence, Mr. Ryle in essence asserted that the government land access roads remained  
unacceptable for use even since 1999.  
[178] In the judgment of the Board, however, the evidence, while not complete,  
indicates that the government land access roads were open earlier than 1999. A letter from Mr.  
Bieren (an engineer employed by TWP) to Mr. Chaisson in June of 1997 describes Government  
Land Access Road No. 7 as being Arough graded with a dozer and coarse rock placed in the soft  
spots, work is far from complete,@ with the work only being sufficient:  
. . . to get construction equipment to the site. Before acceptance of the Facility ALL access  
roads will be brought to the standard specified in the contract and will be a usable, well  
drained road. [emphasis in original]  
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Given Mr. Bieren=s observations, the government land access roads cannot be regarded  
as having been opened as of June of 1997.  
[179] Mr. Ryle=s oral evidence was that the government land access road was open  
in the fall of 1997, but its quality was Aextremely poor,@ Mr. Ryle indicating that he would not have  
operated his vehicles over it, although Mr. Harrison did. Further, Mr. Ryle testified that there were  
washouts in 1998, which were corrected. Leaving aside Mr. Ryle=s opinion of the adequacy of the  
roads, the Board finds his evidence to be consistent with the government land access roads being in  
use in 1998.  
[180] Mr. Sobey=s letter of July 24, 1998, describing his visit to the property,  
contains no reference to the access road not being open, or to its condition, and nothing in his oral  
evidence causes the Board to conclude otherwise.  
[181] Taking into account Mr. Bieren=s letter which indicates that Government  
Land Access Road No. 7 was in existence, but too rough to be used in June of 1997; Mr. Ryle=s  
evidence that the road was open in the fall of 1997, although he regarded it as extremely poor; Mr.  
Ryle=s references to washouts in 1998 occurring in the road; and the fact that there is nothing in the  
evidence surrounding the July 1998 visit by Mr. Harrison, Mr. Ryle, Mr. Sobey, and others, to  
indicate that the government land access roads were not operational, the Board finds that the  
government land access roads were, on the balance of probabilities, completed by December of  
1997, the same month in which the Cobequid Pass Highway opened.  
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[182] Accordingly, the Board finds that the claimant did not have the use of the  
government land access roads to go from Westchester II West to Westchester II East, for a period of  
two years, from December 1995, when the property was expropriated, to December 1997.  
Relative Steepness of the Government Land Access Roads  
[183] In this section, the Board reviews the assertions made on behalf of the  
claimant that the maximum grades on Government Land Access Roads No. 6 and No. 7 are  
excessive. These assertions are separate from the issue of the grade of the government land access  
road at the point it intersects the Westchester Road, a topic which will be discussed in detail later in  
this decision.  
[184] The maximum grade anywhere on Government Land Access Roads No. 6 and  
No. 7 is 12.481%. Mr. Sobey=s report of January 12, 2001 (the A2001 Sobey Report@) says Mr.  
Ryle had expressed concern to him in the fall of 2000 that a grade of 12.481% for 200 metres on  
Government Land Access Road No. 7 Amay be too steep to operate loaded trucks safely.@ The 2001  
Sobey Report was prepared in response to Mr. Ryle=s concerns. It deals with various road related  
issues, including the slope of the government land access road. He states that the design parameters  
for government land access roads for the Highway 104 Cobequid Pass set a maximum grade of 15%.  
Mr. Sobey went on to note: that Colchester County allows grades of up to 10% for its local roads;  
the guidelines produced by RTAC (the Roads and Transportation Association of Canada)  
recommend maximum grades of up to 12% for some urban roads and up to 11% for rural roads; that  
the Nova Scotia Department of Natural Resources suggests a maximum grade for forest access roads  
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of 12% - 13% with short sections up to 16% ; that Kimberly-Clark (a large pulp and paper producer)  
uses 20% as its normal maximum gradient for its woods roads.  
[185]  
Mr. Sobey=s report concluded that the maximum gradient on the government  
land access road of 12.482% Ashould not be a major cause for concern.@ Consistent with Mr.  
Sobey=s evidence, Mr. Bieren, in his evidence, stated that the Department=s specifications for the  
government land access roads permitted slopes up to 15%, and that Government Land Access Roads  
No. 6 and No. 7 were in compliance.  
[186] The Board does recognize that Mr. Ryle, in his work as an agrologist, would  
have encountered various kinds of roads used in agriculture and forestry. Mr. Ryle disagreed with  
Mr. Sobey and Mr. Bieren. Mr. Ryle was not qualified to give opinions on road design, a fact  
pointed out by counsel for the respondent Crown and acknowledged by counsel for the claimant  
during the hearing. At certain points in his oral testimony, Mr. Ryle, himself, appeared to  
acknowledge this, saying, for example, that the steepness, or slope, of the government land access  
road were Aoutside of my field of expertise@, and that this was why he had recommended in 2000 to  
counsel for the claimant that Mr. Sobey be retained to provide advice about the quality of the road.  
Nevertheless, both in his oral evidence and in his written report, Mr. Ryle repeatedly advanced his  
own opinions on the quality of these roads, including acceptability of the grades, surface finish, and  
drainage C opinions which, among other things, were not, in the Board=s view, consistent with those  
of either of the two engineers (Mr. Sobey and Mr. Bieren) who gave evidence on the topic.  
[187] Having considered the evidence (including Mr. Ryle=s relative lack of  
professional qualification in the field, his relative lack of experience with road construction,  
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including government land access roads, and the frequent inconsistencies between his evidence and  
that of the two engineers), the Board accords little, if any, weight to Mr. Ryle=s opinions on roads.  
The Board will, nevertheless, given the extent of his evidence, written and oral, on the topic, refer,  
from time to time, in some detail to the opinions he expressed.  
[188] With respect to the particular issue of steepness of the government land access  
roads, Mr. Ryle had suggested to counsel for the claimant that an opinion be obtained from Mr.  
Sobey with respect to whether the steepness of the road was a problem, and had received Mr.  
Sobey=s answer, which, in essence, was that it was not a problem. Mr. Ryle, however, continued to  
assert his own contrary opinion in evidence, repeatedly indicating that the grades in the road were  
too steep. At one point, the Board was inclined to think that Mr. Ryle might possibly have been  
merely referring to the steepness of the road immediately adjacent to the Westchester Road  
intersection. Taking all of the evidence into consideration, however, the Board finds that Mr. Ryle  
was asserting that the grades on the government land access were simply too steep C quite apart  
from the issue of the grade of the government land access road at the point of intersection with the  
Westchester Road. The Board notes, in this regard, Mr. Ryle=s evidence at the hearing that Athe  
whole issue@ of the access roads= suitability Acame to the fore@ when he examined engineering  
drawings for the government land access roads in August of 2000 and found that there were slopes  
on them in excess of 6%. Further, Mr. Sobey=s report of January 12, 2001, identifies three issues  
which he treats separately, and which he says were brought to his attention by Mr. Ryle: the  
gradient of Government Land Access Road No. 7; the gravel surface of Government Land Access  
Road No. 6 and 7; and the road gradient at the intersection with the Westchester Road. With respect  
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to the first category, the gradient of the government land access road, Mr. Sobey says, in relation to  
the slope of 12.481%, that:  
Gerry expressed concern that this may be too steep to operate loaded trucks safely.  
[189] In his report, Mr. Ryle refers to the government land access roads as Ain  
places [having] slopes [which] exceed those normally found on a public highway,@ and in his  
written and oral evidence on the topic of such roads, he referred to a Aprovincial standard@ of 6%  
being exceeded in the government land access roads. In the view of the Board, it was not entirely  
clear from his evidence and his report whether he was himself asserting that 6% is a government  
standard applicable to such access roads, or whether he allegedly had been told by a governmental  
official (Mr. Chaisson) that it was, and was relying on the veracity of that alleged statement.  
[190] At one point in his evidence, Mr. Ryle asserted that the Aaverage slope@  
between the Westchester Road and the culvert along the government land access road was a little  
over 8%. He said that to cope with a slope of that sort with Aany kind of load at the back of you,@ it  
would be necessary to Ause a very low gear and go very slowly up there.@ In contrast with his  
view that an 8% grade would require the use of a very low gear and mean that a heavy  
load could only go very slowly Aup@ the road, the Board notes that the access roads Mr.  
Ryle proposes be built on the western and eastern escarpments on either side of the West  
Branch of the Wallace River would have grades of 20% and 16%. These access roads are  
essential to the Ryle proposed plan of development for Westchester II East, and their  
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steepness caused Mr. Ryle no concern whatever (this topic is discussed in more detail  
elsewhere in this decision.  
[191] While the government land access roads do indeed, as the Ryle Report asserts,  
have, in places slopes which Aexceed those normally found on a public highway,@ the Board draws  
no negative inference from this: the overwhelming evidence before the Board (apart from that of  
Mr. Ryle), is that roads of this type may have slopes which are greater than those found on ordinary  
public highways. The Board prefers the evidence of Mr. Sobey and Mr. Bieren on this topic to that  
of Mr. Ryle, seeing Mr. Sobey and Mr. Bieren as two persons who are qualified to express opinions  
in this area. Both were in agreement that a grade of 12.482%, the maximum grade for the  
government land access roads in question, is acceptable for a road of this type and purpose.  
[192] The Board finds that the grades for the Government Land Access Roads No. 6  
and No. 7 meet applicable standards, and are adequate for the purposes to which a reasonable person  
in the place of the claimant would want to put them.  
[193] Again, the Board notes that it makes a separate finding with respect to the  
grade of the portion of the government land access road immediately adjacent to the Westchester  
Road intersection.  
Drainage Ditches on Sides of Government Land Access Road  
[194] Mr. Ryle also asserted that the drainage of the government land access roads  
is inadequate. His 2001 report said, with respect to the government land access road between the  
Westchester Road and the divided highway, that:  
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. . . probably for cost reasons no adequate side drainage was provided and it is very likely  
that gullying will recur as it did in 1998 and 1999 . . .  
The Board interpreted Mr. Ryle=s oral evidence upon this point as alluding to, at one point,  
a washout, causing Agullying,@ having occurred on just one occasion, in 1999, and at  
another point to two washouts having occurred, as his report asserted in, 1998 and 1999.  
In each instance, there is no indication that the washouts were not repaired. It was the  
evidence of Mr. Harrison that Aa lot of washouts@ occurred just after the initial construction  
of the road, prior to the installation of the final road surface, which he said, solved Athe  
majority@ of the washout problem.  
[195] Asserting that the design of the road meant that it Atends to washout,@ Mr.  
Ryle, in his evidence, elaborated in some detail on his personal analysis of the matter, which he said  
had led him to this conclusion. He made specific reference to the interaction between slope and the  
alleged lack of side drains, which he asserted would lead to an accumulation of water along the road.  
[196] According to Mr. Sobey=s notes of November 23, 2000, Mr. Ryle had  
expressed concern to him about the alleged inadequacy of the ditches or side drainage of the  
government land access road, and this was one of the issues which Mr. Ryle was now asking Mr.  
Sobey to review. Despite Mr. Ryle=s request to Mr. Sobey, the 2001 Sobey Report (which arose  
from the site visit and conversation recorded in Mr. Sobey=s notes of November 23, 2000), does not  
mention the drainage issue at all. On oral examination, while Mr. Sobey did not recall why he did  
not address drainage specifically in his letter, he said that his recollection was that he and Mr. Ryle  
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had, during the site visit which led to the 2001 Sobey Report, agreed that drainage was not a  
problem.  
[197] When asked on cross-examination whether he had asked Mr. Sobey to look  
into the drainage issue in November 2000, Mr. Ryle agreed that he had. When asked if Mr. Sobey  
determined that drainage was not a problem, Mr. Ryle replied, "I don't know." When asked, twice, if  
he agreed that no reference to drainage appears in the 2001 Sobey Report (which is only three pages  
long), Mr. Ryle replied, "I'm not sure.@  
[198] The Board finds, on the balance of probabilities, that Mr. Ryle raised the issue  
of ditching with Mr. Sobey, that this was an issue upon which Mr. Sobey was much better qualified  
to provide an opinion than was Mr. Ryle, that Mr. Ryle understood Mr. Sobey to have concluded  
that drainage was not a major concern, but that Mr. Ryle continued to express his own contrary  
views in his written and oral evidence.  
[199] The Board has already noted previously that Mr. Ryle=s lack of professional  
qualifications in relation to road construction in general, and, indeed, his disclaimer at some points  
of expertise in this area (at one point in his oral evidence on the present topic, drainage, he prefaced  
one of his comments with the phrase, "In my humble opinion"). Mr. Ryle=s assertions with respect  
to drainage on the government land access roads were not, in the Board=s view, consistent with the  
balance of the evidence, and the Board gives little weight to them. The Board finds that the drainage  
along the government land access roads is adequate for the purposes to which a reasonable person in  
the place of the claimant would put it. Moreover, on the basis of the evidence as a whole (including  
that relating to the proposed Harrison access road, in which erosion was discussed as an issue), the  
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Board concludes that washouts are an expected occasional occurrence with access roads, and there is  
no evidence before the Board to indicate that washouts occur with greater frequency on the  
government land access roads in question than they do on other roads of similar type, nor that those  
washouts which do occur are repaired any less speedily.  
Surface Material  
[200] The claimant asserts that its inability to use the roads is, in part, because their  
surface is inadequate, an assertion with which, this time, Mr. Ryle and Mr. Sobey are both in  
agreement, as well as Mr. Harrison. In his oral evidence, Mr. Harrison used the term Awashed  
stone@ (a term used by Mr. Sobey in his 2001 report) in describing the surface of the government  
local access roads. He said this made the road slippery (Mr. Harrison using the term Aa roller  
bearing effect@), and said that he personally had not operated anything on the access road larger than  
a pickup truck. He also gave oral testimony in which he referred to the absence of Afines@ in the  
surface material to enable it to compact properly.  
[201] Mr. Ryle testified that when he first visited the site in the fall of 1997, the  
access road was open, but the quality of it was, in his opinion, Aextremely poor,@ saying that he and  
Mr. Harrison then Aagreed@ between themselves that the road was Anot in a fit state@ for Mr.  
Harrison to use.  
[202] At one point, Mr. Ryle testified that Mr. Sobey was first asked to give an  
opinion in the fall of 1997; the balance of the evidence before the Board does not, however, on the  
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balance of probabilities, support Mr. Ryle=s assertion that Mr. Sobey was asked about the condition  
of the road in the fall of 1997, or shortly thereafter.  
[203] In the Board=s view, the evidence, on the balance of probabilities, also does  
not support a conclusion that Mr. Sobey was asked about the condition of the road even in the  
summer of 1998, by which time he certainly had become involved in these proceedings. For  
example, on July 3, 1998, Mr. Sobey visited the site to gather information for his first report on July  
24, 1998. That report contains no reference to his having been asked about the condition of the  
access road, nor does it contain any remark by him in relation to its condition. Mr. Sobey agreed  
that none of the persons who accompanied him on the July 3, 1998 visit (including Mr. Ryle and Mr.  
Harrison) raised any concerns with him about the access road at the time, including with respect to  
its surface; Mr. Ryle agreed that this was so; Mr. Harrison testified only that he was Anot sure@  
whether he had mentioned any concerns to Mr. Sobey about the alleged deficient surface of the  
government land access road.  
[204] In his oral evidence, Mr. Sobey agreed that he did not recall any difficulty  
being encountered in using the access road in July of 1998, and further agreed that, on occasions  
when he had visited the site, he had observed other vehicles using the access road.  
[205] The Board finds that it was not until the fall of 2000 that Mr. Ryle expressed a  
concern to Mr. Sobey that the surface finish of the government land access roads created problems.  
Mr. Ryle=s expression of concern to Mr. Sobey occurred shortly after Mr. Ryle=s encounter with  
Mr. Chaisson of TPW in Truro in August of 2000 when, as Mr. Ryle testified, A. . . the suitability of  
the access road came to the fore.@ In response to Mr. Ryle=s request, Mr. Sobey visited  
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Government Land Access Road No. 7 on November 23, 2000, and on November 24. Two to three  
inches of snow were present, and Mr. Sobey said he was unable to drive his car up the government  
land access road from the Westchester Road, because of the snow, and because of what his notes  
described as the Aloose@ stone on the surface. In a letter dated January 12, 2001, Mr. Sobey  
described the road surface on Government Land Access Road No. 7 as Awashed stone@ (the term  
used by Mr. Harrison in his evidence), saying it was inappropriate for a finished gravel layer on a  
road of this type, and Aprobably a safety hazard, because it provides very little traction.@ He  
recommended replacement of this washed stone layer which, he estimated, would cost $20,000 for  
Government Land Access Road No. 7 (based on a layer 6 metres wide, 750 metres long, and 150  
millimetres deep). He estimated that the cost for similar work on the Government Land Access  
Road No. 6 (to the same width and depth, but 2,450 metres in length) would cost $60,000.  
[206] Mr. Sobey agreed in his oral evidence that in making the latter estimate of  
$60,000 for repairs, he had not actually visited Government Land Access Road No. 6, but had relied  
on Mr. Ryle=s advice as to its condition, after which Mr. Sobey had prepared his cost estimate.  
[207] Mr. Bieren visited the site on October 30, 2002, after Mr. Sobey=s findings in  
his report of January 12, 2001 were brought to his attention. Based on his own observations at the  
site, together with his knowledge of the construction of the government land access roads, he  
specifically disagreed with Mr. Sobey=s opinion that Awashed stone@ was present. Mr. Bieren said  
washed stone is a material which is a Aspecialty product@ consisting of stones which are essentially  
one size, with smaller particles being removed to facilitate drainage. Mr. Bieren contrasted this with  
Type 1 gravel which he said consists of a variety of sizes, from larger through to smaller, with the  
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final particle size being very small, a silt or clay commonly referred to as a Abinder,@ all of which  
can be compacted to a stable mass. Mr. Bieren=s description of the nature of Type 1 Gravel was  
consistent with that of Mr. Sobey. Mr. Bieren said that Type 1 gravel was specified in the contract,  
and had been placed on the access roads. With respect to the material used for the surface of the  
government land access roads (such as Type 1 gravel), Mr. Bieren emphasized the importance of  
proper stockpiling, proper transporting of it to the access roads, and proper application. He noted  
that, even with respect to stockpiling, it is possible for material to be mishandled, thereby making it  
less homogeneous than it should be. From his own observations, he considered that all three of these  
operations had been appropriately carried out.  
[208] In his oral examination at the hearing, Mr. Sobey disagreed with Mr. Bieren,  
initially expressing the view that he did not think it was possible that the appropriate gravel had been  
placed on the roads when they were originally constructed, and that they had then gradually turned  
to the condition he asserted. He subsequently agreed that he had on discovery indicated that this was  
possible, but still maintained it was not very likely.  
[209] After having seen the report from Mr. Bieren, on November 6, 2002, Mr.  
Sobey visited the site again. Mr. Sobey said that the surface of the road had been the same for the  
past two years. There was no snow present this time, and he took photographs of the surface of the  
Government Land Access Road No. 7 just before it passed under the divided highway. In his  
opinion, the stone material illustrated in the photographs was not consistent with the Type 1 or Type  
2 specifications for gravel. Mr. Sobey referred to seeing a layer of loose stone on the surface of the  
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Government Land Access Road No. 7 Aprobably a couple of inches@ in depth, while Mr. Bieren  
referred to seeing a loose stone layer which he described as being only half an inch in thickness.  
[210] Pointing to the lack of potholes or other abnormalities in the access roads,  
both of which he had visited, Mr. Bieren said he was able to comfortably drive over the access roads  
at 60 km/h. With respect to traction, it was Mr. Bieren=s view that neither Government Land  
Access Road No. 6 nor Access Road No. 7 had any severe hills, and he had not experienced any  
spinning of tires, even on the steepest part with its grade of about 12.482%. He did note that he had  
driven on Government Land Access Road No. 6 and No. 7 only on one day, and the conditions were  
not wet or snowy.  
[211] To carry out his inspections, Mr. Bieren used a pick and shovel at two or three  
(the oral and written evidence on this point seemed to be not entirely consistent, a matter to which  
the Board attaches little importance) separate points. The two inspection points which he referred to  
in his oral evidence were both on Government Land Access Road No. 6, which is the longer of the  
two access roads, and runs parallel to the highway. He said one of the spots was close to the  
intersection between Government Land Access Road No. 6 and No. 7. As the initial part of the  
inspection, he swept a 4 foot arc with a round mouth shovel, finding that there was enough loose  
material to fill the shovel in that sweep, from which he concluded that there was Amore or less a  
sprinkling of this loose material on top.@ Underlying that, using a pick and shovel, he found that  
there was a hard, densely compacted material consistent with Type 1 gravel. While he did not have  
a measuring tape, he estimated the thickness of the Type 1 gravel layer to be about 3 inches (75  
millimetres), consistent with the specifications. Below that was a layer of the larger 2 inch (Type 2)  
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stones, which he said went to a depth of about 5 inches (125 millimetres), below which the material  
was the local Agravelly till.@ From his inspection involving these steps, Mr. Bieren concluded that  
the thicknesses of different types of gravel required by the government land access road=s  
specifications were actually in place.  
[212] Mr. Bieren suggested that one possible reason for Mr. Sobey having, in his  
view, mistakenly concluded that washed stone was present was what Mr. Bieren described as a  
Aslight@ separation of the particle sizes on the surface. He was satisfied that the stockpiling,  
handling, and applying of the gravel had been correctly done. It was Mr. Bieren=s view that the  
slight segregation observed was caused by the Adusting out@ of binder material on the surface of the  
road, when vehicles created dust clouds which are then blown away. Mr. Sobey, in his evidence,  
indicated he was unfamiliar with the possibility of binder material, or fines being reduced through  
such Adusting out,@ but did not think that this was an appropriate explanation for the state of the  
road surface.  
[213] From the information he gathered during his inspection of Government Land  
Access Roads No. 6 and No. 7, Mr. Bieren saw Ano need to do anything@ further with the road at all  
at present. Nevertheless, he did in his evidence explore two methods by which existing gravel roads  
can be improved, the first, and least expensive, being grading, and the second, and more expensive,  
involving the application of a thin layer of mixed sand and silt (termed Adirty sand@).  
[214] With respect to grading, Mr. Bieren said that this would cost under $1,000,  
and would remix the loose, segregated material with the fines already present. With respect to the  
application of dirty sand, Mr. Bieren noted that on roads in which fines had in fact been depleted (a  
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condition which he did not consider existed in the government land access roads which are the  
subject of this proceeding), his department rehabilitates the surface by applying one inch of dirty  
sand, to reintroduce binder material to the surface. He said this restores a road to like new condition,  
and would cost approximately $10,000 for the entire length of the access roads in question.  
[215]  
With respect to the application of fines, Mr. Sobey expressed doubt that this  
would work in the manner described by Mr. Bieren, but Mr. Sobey likewise readily agreed on cross-  
examination that he had Ano experience with that sort of work.@  
[216] As noted, Mr. Bieren told the Board that, having examined the government  
land access roads, he saw Ano need for doing anything@ with them C including either grading or  
application of dirty sand. While acknowledging that he himself does not drive logging trucks, Mr.  
Bieren=s judgment was that the government land access road is currently acceptable for traffic,  
including logging trucks, given the absence of Aa great number of hills, let alone steep hills.@  
[217] The government land access roads were constructed for the use of persons  
owning land adjoining the Cobequid Pass right-of-way, whose previous means of access had in some  
way been impaired. As noted, Mr. Ryle testified that he and Mr. Harrison Aagreed@ in late 1997 that  
the road was not useable, and the claimant has adopted as one of its positions since that time the  
view that the claimant=s property should therefore be deemed to be abandoned. While it is the  
evidence of the claimant that the road is not usable, the evidence indicates that these same  
government land access roads are being used by other persons in the area to gain access to properties  
near the subject property. Mr. Sobey, Mr. Harrison and Mr. Ryle all agreed that the government land  
access road is being used by other persons working in nearby fields, including blueberry operations  
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involving such vehicles as tractors. Mr. Harrison=s testimony at one point did not appear to be  
especially forthcoming with respect to the utilization by his neighbours of a road which he and Mr.  
Ryle had in 1997 Aagreed@ was unusable:  
A.  
Q.  
A.  
Q.  
A.  
Q.  
A.  
I've seen people travelling on it with a tractor, yes.  
I understand that at least one of your neighbours has a woodlot off that access road?  
I don't know.  
And you're aware that Mr. Rushton has a blueberry field off of that access road?  
Yes. Yes.  
He continues to operate that blueberry field?  
I assume so.  
The Board considers that, on the balance of probabilities, the evidence before it does not  
support a conclusion that the road is not utilized by persons other than the claimant, even  
during the winter months.  
[218] As already noted, Mr. Ryle lacks the professional qualifications in relation to  
roads of Mr. Sobey and Mr. Bieren, who were so qualified; it gives little weight to his evidence, as  
well as relatively little weight to that of Mr. Harrison. Turning to both Mr. Sobey and Mr. Bieren,  
the Board saw both of these witnesses as being professional in the explanations which they gave in  
their oral evidence, with each appearing to be detached and objective. Neither appeared to advocate  
on behalf of the parties with whom they were associated (Mr. Sobey for the claimant, Mr. Bieren for  
the Crown). Both answered questions in a direct, open and non-argumentative fashion, with no  
hesitation, much less intransigence, in tone or otherwise, even when the answers to the questions  
being asked of them were likely to be unfavourable to the party with whom they were associated.  
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[219] Mr. Sobey was qualified to give opinion evidence with respect to matters such  
as civil engineering, including the design and construction of bridges, roadways, and woods roads.  
He did acknowledge on cross-examination that, while he had some experience with road design, it  
has not been a significant focus of his work, and that, prior to the present proceeding, the road  
design work which he has done has been mostly in subdivisions and industrial parks, and not forest  
roads. While Mr. Bieren, like Mr. Sobey, felt it necessary to consult with others with respect to  
common practices in woods roads or forest roads for purposes of his evidence, he had been  
personally involved in the Cobequid Pass project, including work on the extensive network of  
government land access roads associated with that highway, of which Government Land Access  
Roads No. 6 and No. 7 are part. His direct involvement in the project can, of course, be seen as a  
potential source of bias in his evidence; Mr. Sobey, however, testified that he did not have any  
"serious concerns" about Mr. Bieren's training and background with respect to the comments made  
in his report, nor, with respect to Mr. Bieren being, as he put it, "overly biased" in the presentation of  
his opinions.  
[220] The Board has reviewed the photographs made by Mr. Sobey, and viewed  
exposed gravel on the road surface during its site inspection. While the Board places little reliance  
upon its own observations (relying instead upon the evidence of witnesses), the Board neither saw  
during its site inspection nor sees in the photographs a layer of loose stone Aa couple of inches  
thick,@ as perceived by Mr. Sobey, but, instead a layer closer to the thickness asserted by Mr.  
Bieren, although perhaps a little thicker than 2 inch in some spots.  
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[221] The Board has taken into account all of the evidence, including: that  
allegations respecting the surface of the government land access roads were not made to Mr. Sobey  
in July of 1998 when he visited the site, nor did he make any comments in relation to it at that time;  
that Mr. Sobey=s first comments on this point were not made until after the issue was raised with  
him in the fall of 2000; that Mr. Sobey visited Government Land Access Road No. 7 only, and not  
Government Land Access Road No. 6, relying on Mr. Ryle=s advice as to the nature and condition  
of the finish of Government Land Access Road No. 6 east of the divided highway; that, while Mr.  
Sobey had never visited Government Land Access Road No. 7, he nevertheless put forward an  
estimate of $60,000 to repair it, relying on Mr. Ryle as the source of all his information about the  
condition of that road; that Mr. Bieren visited both Government Land Access Road No. 7 and No. 6,  
testifying that he was able to drive comfortably at 60 km/h over both of the access roads for their  
entire length, albeit in dry conditions; that, in at least two locations, Mr. Bieren made specific  
physical inspections which included digging holes in the road with a pick and shovel, identifying the  
various layers of material, and comparing these to the specifications for such roads; that Mr.  
Bieren=s evidence is that proper stockpiling, transporting and application of gravel on the access  
roads occurred; that Mr. Bieren considered the roads as of the fall of 2002, a few months before the  
hearing, to be acceptable for the operation of heavy logging vehicles. As well, the Board is  
conscious that Mr. Sobey had visited the site upon more occasions than Mr. Bieren for purposes of  
this proceeding, including when snow was present. While Mr. Sobey is a well qualified civil  
engineer, his experience with road construction of this type is less extensive than that of Mr. Bieren  
who had, at the time of the hearing, worked almost 20 years almost exclusively in the area of roads  
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and bridges. The Board concludes that the access roads under consideration in the present  
proceeding were two of many constructed as part of the Cobequid Pass Highway project. Lastly, the  
Board has taken into account the fact that, while the claimant claims an inability to use the access  
roads for its purposes, such difficulties do not appear to others who are involved in nearby similar  
agricultural operations, such as woodlots and blueberry fields.  
[222] After considering all of the evidence, the Board concludes, on the balance of  
probabilities, that the government land access roads, from December, 1998 onward, met the surface  
standard which is reasonably necessary for a road of this purpose and type.  
Gradient at Intersection Between Government Land Access Road and  
Westchester Road  
[223] The Government Land Access Road No. 7 which leads to lands of various  
property owners, including the claimant, on the east side of the divided highway, intersects an  
existing public road known as the Westchester Road.  
[224] It is common ground between Mr. Sobey and Mr. Bieren that the slope of the  
Government Land Access Road at the intersection with the Westchester Road is steeper than  
specified in guidelines such as those established by RTAC. In essence, Mr. Bieren says that  
inappropriate grades are specified in the plan from which the intersection was built: the plan shows  
a gradient of 3.684% at the centre line of Westchester Road, increasing to 8.082% at 20 metres from  
the centre line of the Westchester Road (about 15 metres from the shoulder of the Westchester  
Road). Mr. Sobey=s January 12, 2001 report contrasts this with the RTAC manual for October 1973  
which recommends a gradient of between 0.5% and 2% for a minor road, downward from the major  
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road for a minimum distance of 100 feet (30.5 metres) from the edge of the pavement of the major  
road. Mr. Sobey=s report mentions as an additional example, Colchester County=s standard  
specifications of 1995 for public road intersections which specify a maximum gradient of 2% for 15  
metres from the closest shoulder. In short, Mr. Sobey considered the gradient of Government Land  
Access Road No. 7, just before its intersection with the Westchester Road, to be steeper than  
prescribed in either of these standards. Mr. Bieren did not disagree.  
[225] As a corrective measure, Mr. Sobey suggested reducing the grade to a  
maximum of 2% from the centre line of the Westchester Road for the first 19 metres (62.4 feet),  
after which the grade would increase to 13.708%. While Mr. Bieren regarded Mr. Sobey=s  
proposal as acceptable, he suggested that a less expensive solution would use a gradient of 15%  
instead of 13.708%, thereby intersecting the lower, finished grade sooner and reducing the  
possibility of encountering rock. He said that the $20,000 estimate by Mr. Sobey for the cost of the  
correction at the intersection could thereby be reduced by 25% or more. The modifications proposed  
by Mr. Sobey and by Mr. Bieren are, in essence, the same, and differ only in detail. Both involve  
reducing the slope of the government land access road as it meets the Westchester Road, somewhat  
flattening the access road at that point, thereby creating, as both Mr. Sobey and Mr. Bieren put it, Aa  
landing@; as the access road moves away from the Westchester Road, both engineers would trade off  
a reduced slope of the landing at the intersection for a steeper slope than had existed before the  
modification was done. The Board notes that both solutions, while considered acceptable by the two  
engineers for a road of this type, do not appear to comply with Mr. Sobey=s statement of the  
recommendations found in the RTAC guidelines. For example, Mr. Sobey=s solution involves  
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moving a grade of 2% for the first 19 metres (62.4 feet), followed by a grade of 13.708%, while his  
report refers to an RTAC guideline between 0.5% and 2% for a minimum distance of 100 feet (30.5  
metres) from the edge of the pavement. Nevertheless, Mr. Sobey was content with his suggested  
solution. Further, the evidence of Mr. Bieren and Mr. Sobey was that each, from their professional  
perspective as engineers, regarded the other=s solution as acceptable.  
[226] There is no doubt that the intersection at the Westchester Road does not meet  
the guidelines set by RTAC or the other specifications referred to above, and the Board so finds. In  
the view of the Board, however, such a finding does not necessarily mean, as the claimant asserts,  
that the road is thereby rendered unusable for its purposes, or at least, unusable with reasonable  
safety.  
[227] Mr. Ryle indicated, in his oral examination, that Mr. Sobey was engaged in  
1997 to give an opinion on the slope of Athe piece between the Westchester Road and the culvert  
which goes under Highway 104.@ Mr. Sobey=s oral and written evidence do not lead the Board to  
conclude, on the balance of probabilities, that the slope of the road in general (or the slope of the  
road at the intersection with Westchester Road) was raised with Mr. Sobey in 1997, or even at the  
time of his July 1998 visit. In his 2001 report, however, Mr. Sobey does recount telephone  
conversations with Mr. Ryle prior to and subsequent to Mr. Sobey=s November 23, 2000 visit to the  
site, in which (among other things) Mr. Sobey was asked to comment on the gradient of Government  
Land Access Road No. 7 at its intersection with the Westchester Road.  
[228] Having inspected the site, Mr. Sobey=s view was that the gradient at the  
intersection with the Westchester Road Acould be a safety hazard, making it difficult, if not  
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impossible, to stop a loaded vehicle approaching Westchester Road, particularly during icy  
conditions.@ Mr. Harrison testified that he considered that approaching the intersection from the  
government land access road was unsafe Ain the wintertime@ given the visibility and the grade,  
saying that limited traction would mean that a logging truck attempting to stop at the Westchester  
Road intersection would slide.  
[229] The following question and answer occurred with Mr. Bieren on cross-  
examination:  
Q.  
A.  
Q.  
So it's a more immediate slope that you face as opposed to a steeper slope?  
Exactly.  
So that you're coming faster at the slope, and that's the -- and the effect of the Sobey  
recommendation would be to flatten that -- or allow more room or a greater entrance  
before you hit the slope?  
A.  
Yes. There would more or less be a landing area at the Westchester Road.  
Q.  
And so if you have this combination of a landing area that's outside specifications,  
with the effect of this ball bearing effect or walking on marbles, would you agree with  
Mr. Sobey's conclusion that that creates the potential for a dangerous situation  
leading into the Westchester Road?  
A.  
Um, not under the conditions I experienced.  
Q.  
But under the conditions that he experienced where he couldn't access the access  
road #7 because of the spinning effect on his tires and his concern about traction, if  
that was present, would you agree that that could create a dangerous situation  
leading into the intersection with the Westchester Road?  
A.  
If those conditions were present, yes, it could.  
Mr. Bieren then was saying that he did not consider a dangerous situation was created at  
the intersection Aunder the conditions@ which he experienced. The question asked of Mr.  
Bieren appears to involve the assertions by claimant=s counsel and Mr. Sobey with respect  
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to: first, to the surface of the road (about which Mr. Sobey and Mr. Bieren disagree, and  
with respect to which the Board has adopted Mr. Bieren=s opinion); and second, Mr. Sobey  
having experienced wheel spin in snow, going uphill (which he attributed, at least in part, to  
the surface). The question may be seen as asking whether, if a vehicle was sliding in snow  
downhill toward the intersection, with its tires spinning (even though it was going downhill),  
Mr. Bieren would agree that this Acould create a dangerous situation.@  
[230] Later on examination by the Board, Mr. Bieren said that snow in itself creates  
traction problems on any kind of roads. He also said a person coming down the access road to the  
Westchester Road intersection is coming down Aa fairly steep hill@ on the order of 12%, and must  
stop and look before entering Westchester Road. He did not see this as Aso critical@ a situation as  
the one created by a heavy vehicle parked on a slope and then attempting to get started up a still  
steeper slope.  
[231] From the evidence before it, the Board concludes that a person operating a  
heavily loaded logging truck on the access road, in snowy conditions which limit traction, might  
encounter problems approaching the intersection C particularly if the truck was not driven at an  
appropriately slow speed when approaching the intersection with the Westchester Road, at which  
point the truck would have to execute either a left or right turn.  
Maintenance: Duty  
[232] A figure for the cost of snow ploughing appeared in the calculations used in  
the Ryle Report. It seems that this was derived from data produced by Mr. Gervason, who assumed  
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snow ploughing costs of $1,000 per year while major wood harvesting was occurring, after which, it  
would decline to about $760. In the course of his oral examination, Mr. Gervason noted that either  
the Athol or Sobey Report referred to a different snow ploughing expense, saying that the cost of  
snow ploughing would be in addition to his estimated $1,000 per year for maintenance, while  
acknowledging as well that a letter from Mr. James to Counsel for the respondent Crown of  
December 19, 2002, dealing with a response to an undertaking by Mr. Ryle, said that the $1,000  
figure for maintenance of access included snow ploughing as provided from Athol in the amount of  
$240 per annum. Ms. Haylock likewise produced snow ploughing figures, which she derived from  
her own experience and from conversations with the Irving Group. Her calculated costs, if Mr.  
Harrison used a forwarder in place of a grader, were $48 per ploughing, with five ploughings per  
year being assumed to be necessary, for a total cost of $240. In a memorandum (H-59) from Mr.  
Bieren to Mr. Chaisson, a right-of-way officer with TPW, on June 26, 1997, Mr. Bieren said that his  
Department does not engage in ploughing snow from access roads (a copy of which was received by  
Mr. Caldwell on July 4, 1997). In his oral evidence, however, Mr. Bieren said that, while the  
Department would not, for example, plough an access road to allow an owner to get to a cottage, it  
would, if requested by a person such as Mr. Harrison, plough the access road for the purpose of  
removing wood products, or to allow a berry producer to move in equipment, or to haul in material  
for building construction. On further questioning, Mr. Bieren clearly affirmed that the TPW would  
plough the access road in order to allow persons such as Mr. Harrison to do the work that needed to  
be done, that this ploughing would be at TPW=s expense, and not at the expense of the claimant, or  
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of the various owners adjoining Government Land Access Roads No. 6 and No. 7. The Board,  
however, saw Mr. Bieren=s oral evidence as being clear, and specific on the point in issue before the  
Board.  
[233] While the Board has not accepted the claimant=s position with respect to the  
deficiencies of the government land access roads, the Board has concluded on the evidence before it  
that the Crown accepts responsibility for maintenance of these roads, as well as for ensuring that it is  
built to appropriate standards, and that the claimant has no responsibility for the maintenance of  
these roads.  
[234] It appears that this state of confusion presented difficulties for, among others,  
Mr. Bradley, who appears to have assumed that any deficiency in the access road was one which it  
was the responsibility of the claimant to correct. Mr. Bradley suggests that the claimant should have  
incurred the costs of road improvement, if indeed the poor quality of the road was impeding  
development of Westchester II East. The inference drawn by the Board is that Mr. Bradley  
considered repair to the road was an expense which properly accrued to the claimant. The Board  
finds that this is, on the evidence, not so: repair of the road, and snow clearing of it, on the basis  
outlined by Mr. Bieren, and accepted by the Board as TPW=s policy position, is a responsibility of  
the Crown.  
[235] The Board finds, consistent with the overall maintenance policy of the  
Cobequid Pass Highway as a whole, that the government land access roads are recognized by the  
Crown as being its responsibility, whether directly or indirectly (through its agent, the Atlantic  
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Highways Corporation, which manages and operates the Cobequid Pass Highway). This  
responsibility includes correcting the grade at the intersection of the government land access road  
and the Westchester road.  
[236] The Board=s decision in this matter, however, assumes that TPW will indeed  
provide the maintenance services for the government land access road in general (including  
correcting the grade of the government land access road at the point of intersection with the  
Westchester Road, in a manner consistent with that recommended by Mr. Bieren or Mr. Sobey) and  
snow ploughing services as described by Mr. Bieren in particular. In the event that such does not  
occur or ceases to occur because of a change in departmental policy, the Board reserves the  
jurisdiction to order compensation to the claimant for this sum.  
Length of Access Road  
[237] According to Mr. Sobey, Crown Access Road No. 6 is 2,450 metres long and  
Crown Access Road No. 7 is 750 metres long, for a total of 3.2 kilometres. Mr. Gervason, in his oral  
evidence, said that he had proceeded on the assumption in his valuation and maintenance estimates  
that the access road was 4 kilometres long.  
[238] Mr. Ryle, in his oral evidence, said that he measured 2.2 kilometres from the  
entrance to Westchester II West along the Westchester Road to where the government land access  
road intersects it. He said it was then 1 kilometre from that intersection along the government land  
access road to the culvert under the divided highway, and then 2.3 kilometres from the culvert to the  
boundary of the claimant=s property, for a total one-way travel distance, according to Mr. Ryle, of  
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5.5 kilometres, 3.3 kilometres of which was on government land access roads. Mr. Role=s odometer  
reading of 3.3 kilometres corresponds well with Mr. Sober=s 3.2 kilometres as taken from the plans.  
[239] Mr. Omond was, at the time of his interview with Mr. Harrison, told that the  
total travel distance would be around 6 kilometres, but no government land access road existed at  
that time.  
[240] For purposes of this proceeding, the Board finds that the distance from  
Westchester II West to Westchester II East, via the Westchester Road and Government Land Access  
Roads No. 6 and No. 7, is 5.4 kilometres (being 3.2 kilometres of government land access road, as  
taken from the evidence of Mr. Sober, together with 2.2 kilometres from Westchester II West along  
the Westchester Road, according to the evidence of Mr. Role).  
[241] Counsel for the respondent Crown argued that Mr. Role=s computation of  
travel excluded the distance which would have been necessary in any event to get from the  
Westchester Road to the back property, if the Cobequid Pass Highway had not been built. He said  
the right-of-way of the Cobequid Pass Highway is 136 metres on the south side, and 133 metres on  
the north side. As the Board reads the survey documentation with respect to the latter figure, the  
actual figure is 136 metres. He also pointed to the minimum depth of Westchester II West, from the  
Westchester Road to the Cobequid Pass Highway right-of-way, as being 282 metres (on the north  
boundary). He said that this amounted to a significant round trip simply to go from the Westchester  
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Road to the western boundary of the Cobequid Pass Highway. For example, the present entrance to  
Westchester II West from the Westchester Road is at the southeastern corner of the Westchester II  
property, at which point, if one were to go straight toward the rear line along the southern boundary,  
the southern boundary is 438 metres, to which would be added 136 metres, making a total of 574  
metres one way, or 1,148 metres round trip. As a further example, Westchester II West contains at  
present an access road which existed at least 20 years ago, and which runs from the southeastern  
corner of the Westchester II property, initially going inland along the southern boundary and then  
turning northward, running parallel to the Westchester Road, and forming, very roughly, the eastern  
edge of the principal blueberry growing area in Westchester II West. If this existing woods road  
were to be used, an examination of the survey plans indicates that its length is in excess of 353  
metres (the length of the western boundary on the Westchester Road). To this would be added the  
distance from that access road to the rear line along the northern boundary, which would be, at a  
minimum, 141 metres (the distance being slightly over one half that of the length of the northern  
boundary), to which would be added 135 metres, to cross the right-of-way. This makes a total of  
629 metres one way, or 1,258 metres round trip. As a third and final example, if the claimant were  
to run a new access road from the Westchester Road along the northern boundary, taking the shortest  
route to the rear boundary, thereby destroying a portion of blueberry fields, the distance would be  
282 metres plus 135 metres, for 417 metres total, or 834 metres round trip. In summary then, the  
Board sees the possible round trip distances from the entrance of Westchester II West to the  
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Cobequid Pass Highway right-of-way as, variously, 1.148 kilometres, deducting a figure from the 11  
kilometre round trip (e.g., .834 kilometres).  
[242] Counsel for the claimant did not seem to make any significant efforts to rebut  
the Crown=s assertion, and the Board=s initial view of it was that it a was reasonable suggestion,  
one best implemented by selecting the round trip adjustment most beneficial to the claimant, being  
.834 kilometres.  
[243] On reflection, however, the Board ultimately concluded that it did not agree  
with this part of the submissions of counsel for the respondent Crown. In brief, the Board considers  
that counsel for the respondent Crown=s assertion assumes that the trip from Westchester II West to  
Westchester II East should be measured from the entrance on Westchester Road of Westchester II  
West. If, however, the claimant were, hypothetically, working in Westchester II West in, for  
example, the area of what is now the western boundary of the Cobequid Pass right-of-way, and C  
again, entirely hypothetically C the right-of-way was not there, i.e., the expropriation had not taken  
place, and the person wished to continue working eastwards on Westchester II, the person would  
simply continue proceeding eastward C there would be no need to travel the distance between the  
site where the work is done and the entrance of Westchester II on the Westchester Road. It is  
possible that if one accepts the need for a security building, as urged by Mr. Role and Mr. Harrison  
(but rejected by the Board) which could be located in Westchester II West, the argument made by  
counsel for the respondent Crown would carry greater weight, since equipment would be kept in the  
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security building overnight and moved from it to the east. Applying the Crown=s argument on this  
point leads one, in the view of the Board, into a series of almost circular analyses, depending upon  
whether a security building is or is not necessary, depending upon where in Westchester II East a  
person would be working at the particular time, depending on where the equipment originated (the  
Board finding that equipment would in fact come from the home farm in Southampton and not from  
Westchester II West), etc. Taking into account all of the evidence, as well as being mindful of what  
it sees as the spirit of the Supreme Court of Canada=s direction in Toronto Area Transit  
Operating Authority v. Dell Holdings Ltd., [1997] F.C.J. No. 6 (discussed in more detail later in  
this decision, under AStatutory Interpretation and Expropriation Matters: Presumption in Favour of  
Compensation@) with respect to the overall approach to be taken to the owners of properties in  
expropriations, the Board declines to make the adjustment requested by the Crown, and fixes the  
additional round trip distance at a total of 10.8 kilometres, which it rounds to 11 kilometres.  
Road Related Abandonment Claim  
[244] Mr. Role urged that the claimant should be compensated as if he was forced to  
abandon the property because of an inability to gain access to it, because of the alleged poor quality  
of the government land access roads.  
[245] Mr. Role alluded to a blueberry case involving Charles Rushton, near Oxford,  
in which Mr. Role said he had successfully Aput forward@ a claim of abandonment on behalf of Mr.  
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Rushton. The facts of that case, according to Mr. Role=s evidence, were that Mr. Rushton had been  
permitted to cross the highway from his buildings to his lands, which were about 2 kilometres away.  
When the highway moved from a single carriageway road to a divided highway, however, Mr.  
Rushton=s permission to cross the road was revoked. This meant that rather than simply driving  
across the road from his buildings to his lands (a distance of about 2 kilometres one way, or 4  
kilometres round trip), he was now required to make a one-way trip of 22 kilometres, or a round trip  
of 44 kilometres. The Board has found that a round trip from Westchester II West to Westchester II  
East via the Westchester Road and the government land access road is 11 kilometres. Unlike the  
evidence respecting the claimant=s operations and various properties, it appears that the Rushton  
operation was a much more stereotypical agricultural operation, in which there was a home base  
with buildings, and, prior to the expropriation, relatively easy access from that home base to the  
adjacent lands, which were in use by the operator, only 2 kilometres away. In the present instance,  
there is no home base on Westchester II West, i.e., no investment of buildings or other fixed assets  
on the subject property; moreover, apart from the absence of such assets, there is no evidence to  
support the view that the property the Board has called Westchester II West was ever actually used  
by the claimant to access the lands of Westchester II East for any reason. Of the entire 760 acres  
which comprise Westchester II, there is simply an 8 acre blueberry field, with a woods road on the  
eastern perimeter of that field, with, perhaps, a small amount of clearing activity having occurred on  
the eastern edge of that road; the balance remaining of the 760 acre parcel is entirely undeveloped  
woodland. Moreover, the Westchester II West property is serviced using equipment and, in some  
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instances, people which are brought from the claimant=s actual home base at Southampton (as the  
Board has already noted about 35 to 40 kilometres away as the crow flies).  
[246] In his oral evidence, Mr. Ryle asserted that Mr. Sobey, the engineer, regarded  
the property as, in Mr. Ryle=s words, Aan abandonment situation@ because of the condition of the  
access road. In the Board=s judgment, Mr. Sobey=s oral and written evidence was not consistent  
with Mr. Ryle=s assertion, i.e., Mr. Sobey never suggested that the Westchester II East property  
should be regarded as being in an abandonment situation because of the state of the government land  
access roads.  
[247] Mr. Ryle, in his report, asserted that the difficulties with the government land  
access road meant:  
. . . it might prove very difficult to sell the land at all given that a prospective purchaser must  
face all these constraints . . . [emphasis in original]  
with respect to access to the land. Mr. Ryle contrasted this purported situation (i.e., of the  
lands perhaps being completely unsaleable because of the government land access roads)  
with that which existed prior to expropriation when, he said,  
. . . Mr. Harrison had simply to extend his existing road over a gentle hill in this case certainly  
no slopes even approaching 6% to have access to the remainder of his holding . . .  
This statement ignores the presence of a 20% slope on the west side of the escarpment of  
the West Branch of the Wallace River, a 16% slope on the eastern escarpment, and a  
crossing to design and construct between the two, all being matters of which Mr. Ryle was  
aware at the time he wrote the portion of his report which the Board has just quoted.  
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[248] The Board rejects Mr. Ryle=s claim that the property should properly be  
regarded as being in a de facto state of abandonment as a result of the expropriation.  
[249] As a final note with respect to the matter of abandonment, the Board notes  
that the respondent=s closing brief says that, even within Mr. Ryle=s abandonment scenario, the  
claimant was still putting forward a claim relating to delay of profit. Counsel for the respondent  
Crown asserts and the Board accepts that, if indeed the lands should properly be treated as  
abandoned as of the date of expropriation (a proposition which, as the Board has found elsewhere in  
this decision, it does not accept), the delay of profit claim would be inconsistent with such an  
abandonment approach: if the abandonment scenario were to be accepted, there would be no profit,  
and, accordingly, no delay, i.e., a delayed profit claim is inconsistent with the abandonment  
approach.  
VIII WEST BRANCH OF THE WALLACE RIVER AND CLAIMANT WOODS ROADS  
[250] The government land access road allows the claimant to go from the 24.5  
acres in Westchester II West to the 725.5 acres assumed to exist in Westchester II East. The Board  
has found that 69.5 acres in total lie between the Cobequid Pass right-of-way and the West Branch  
of the Wallace River, which, with its steep escarpments on either side, presents a significant  
obstruction to access to the balance of the claimant=s property to the east of the River. The  
Claimant=s land to the east of the River (Westchester II East) comprises 656 acres in total. It is in  
Westchester II East that the bulk of the lands with blueberry potential which are the subject of the  
Ryle Report are located (365.5 acres of lands with blueberry potential are assumed to exist to the  
east of the River, and 34.5 acres of woodland with blueberry potential are assumed to exist between  
the River and the Cobequid Pass right-of-way to the west). The West Branch of the Wallace River  
presents two particular challenges: the crossing of the river itself, and the construction of roads down  
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the western and eastern escarpments above the river. The Board will turn to the matter of the access  
roads first.  
Access Roads Needed for Western and Eastern Escarpments of the West  
Branch of the Wallace River  
[251] Counsel for the respondent Crown suggested that the West Branch of the  
Wallace River has Avery steep banks that drop anywhere from 200 to 400 feet in elevation.@ Mr.  
Ryle, in cross-examination, in essence agreed, saying that, on the west side of the crossing, there was  
a drop of 247 feet (or 75 metres; 200 metres - 125 metres = 75 metres), while on the eastern  
escarpment, the drop was 320 feet (or 100 metres; 225 metres - 125 metres = 100 metres). Later in  
his evidence (Exhibit H-68, prepared and submitted toward the close of the proceedings), Mr. Ryle  
referred to the 200 metre contour line on the top of the western escarpment, and a 250 metre (rather  
than 225) metre contour on the eastern escarpment. The contour map referred to by various  
witnesses seems to the Board to show the river at the 120 metre level, with its banks on either side at  
the 125 metre level. Mr. Ryle himself agreed on cross-examination, for example, that even at the  
200 metre contour line on the west side of the river, the land continues to rise to the west C in other  
words, if one regards, as Mr. Ryle did, that the 200 metre mark is the top of the western escarpment,  
the fact is that the land continues to rise behind it; the same is true on the eastern side.  
[252] The escarpments on either side of the river not only drop significantly, but are,  
relative to the portion of Westchester II East which is to the east of the river, relatively narrow.  
[253] Mr. Sobey was not engaged to do any sort of design work for the proposed  
road on either side of the escarpment, or of the crossing. His report of July 24, 1998, simply  
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enclosed an enlarged copy of the local topographic map (with contour lines), upon which Mr. Sobey  
marked the approximate location of the property boundaries. Mr. Sobey also marked on the contour  
map possible locations for an access road on the western escarpment down to the river, for a  
crossing of the river, and for an access road up the eastern escarpment. The proposed access road  
for the western escarpment begins near the southeastern boundary of the property and proceeds  
diagonally down the slope of the western escarpment almost to the northwestern boundary, at the  
river, where a river crossing (discussed in more detail below) must be built. On the east side of the  
river, Mr. Sobey=s contour map shows the access road moving from the northwestern boundary of  
the property diagonally in a southeasterly direction up the eastern escarpment. Because the property  
is somewhat wider east of the River, the access road up the eastern escarpment can be made longer  
than would have been possible if the property had remained the same width as it is to the west of the  
River.  
[254] The slope of the access road on the western escarpment to the river, as marked  
by Mr. Sobey on the topographic plan, is 20%; the slope of the proposed eastern escarpment road is  
16%. Counsel for the respondent Crown asserted in his closing briefs that the escarpment roads  
would have lengths of 100 to 150 metres on either side of the river, but the contour or topographic  
maps filed with the Board, indicate that the minimum diagonal distance from the river bottom to the  
200 metre contour of the western escarpment is .4 kilometres (about 1,300 feet, or longer than the  
distance from the eastern end of Westchester II East to the nearby Webb Mountain Road), with the  
minimum length of the corresponding diagonal between the river and the 250 metre contour on the  
eastern escarpment appearing to be .7 kilometres, and perhaps even .8 kilometres. The western and  
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eastern escarpment roads, while feasible, are Afar from ideal@ (as Mr. Sobey himself noted), as is the  
crossing. In certain ways, while both engineers agree that the roads and the crossing are feasible,  
they approach the limits of what is safe and practical.  
[255] The steepness of the 20% and 16% slopes can be viewed in the context of Mr.  
Ryle=s intense criticisms of the steepness of the government land access roads, the steepest of which  
has a slope of 12.482%. Moreover, it seems that keeping the grade to a maximum of 20% required,  
among other things, assuming that the crossing would be built upon 13 feet of fill placed in the  
bottom of the gorge of the West Branch of the Wallace River, with a long concrete culvert through it  
to allow the water to continue flowing.  
[256] Moreover, the 20% and 16% slopes thereby achieved are not the slopes of the  
escarpments themselves, but the slopes of the proposed roads across the escarpments: for example,  
the slope on the west side actually exceeds 20%, with the proposed road achieving a grade of 20%  
only by (in addition to the 13 feet of fill in the crossing) traversing the hill, i.e., going diagonally  
across it in order to reduce the grade. This approach (i.e., going diagonally across the slope) means  
that the access roads on the western and eastern escarpments must be cut into the slope, so that  
vehicles will not tilt as they pass along the road. Mr. Sobey agreed that he did not know what  
overburden (i.e., the upper part of the soil) existed, or whether blasting would be required, in order  
to cut into the slope. In noting this, the Board intends no negative reflection upon Mr. Sobey C he  
was simply never asked to engage in such design work. Mr. Ryle, having initially denied on cross-  
examination that the road going down the slope of the escarpment would have required ongoing  
maintenance, eventually agreed that, because erosion is a concern, it would require more  
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maintenance than a flat road, to offset the effects of water rushing down the steep hillside. Mr.  
Bieren also noted that erosion and sedimentation effects might be critical, given that the river lies at  
the bottom of the slopes over which the escarpment roads would be built. Apart from the significant  
uncertainties resulting from these omissions from the claimant=s evidence, the Board finds that the  
roads on the western and eastern escarpments will, given their nature (e.g., their steepness, and their  
traversing of the slope) require erosion and sedimentation controls. Again, the claimant has  
provided no information about these at all, much less possible designs or costs.  
[257] Relating to the river crossing, Mr. Bieren notes that his Aforestry sources@  
had told him 15% was the Adesired maximum@ for forestry roads; that government funding is not  
generally applied to roads in excess of 15%; that private road builders can use slopes up to 20% on  
permanent roads (consistent with Mr. Sobey=s information from Kimberly-Clark); that grades  
beyond 20% up to 30% can be built, but:  
. . . only for one-time use. The roads must then be removed. The steep gradients make it  
difficult to control runoff and severe erosion can occur . . .  
[258] In contradiction to the evidence of Mr. Sobey and Mr. Bieren, Mr. Harrison  
claimed that slopes in excess of 20% could be used for permanent roads: AI'm sure there's roads that  
. . . have a steeper grade than that . . .@  
[259] On the evidence, the Board finds that the proposed Harrison access road (to be  
built with a 20% grade across the western slope of the escarpment of the West Branch of the  
Wallace River, ending in a turn of a little under 90 degrees over the crossing to be built in the river,  
and then climbing up the eastern escarpment at 16%, exceeds some guidelines for the steepness of  
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permanent roads, and is at the absolute limit for the steepest permanent road according to Kimberley  
Clark=s standards. The extreme nature of the hypothesized road is exacerbated by the fact that, as  
the Board has already noted, the 20% for the road does not mean that the hill has a 20% grade; the  
grade of the hill is in excess of 20%, while the road is kept to a 20% grade by building diagonally  
across the steeper slope. Since Mr. Sobey was not asked to investigate the nature of the overburden  
upon which such a road might be built, the practical possibilities and cost implications of  
constructing roads diagonally across the western and eastern escarpments.  
[260] Apart from the safety or traction issues associated with such slopes, the Board  
notes that 20% is 5% above the limit for public roads, and, according to the evidence before the  
Board, at the absolute upper limit for even private permanent ones, as built by organizations such as  
Kimberly-Clark. A road over 20% is for one-time use, and must then be removed because of run-off  
and erosion problems associated with such steep grades. In the view of the Board, this underlines  
the extreme nature of a permanent road having a 20% grade, and the maintenance implications  
associated with it.  
The West Branch of the Wallace River  
Width of the River  
[261] The only persons who have seen the West Branch of the Wallace River, and  
who gave evidence in the present proceeding, were witnesses for the claimant. Mr. Sibley described  
his visit to the area thusly:  
the river is in a gorge, as I would describe it, a low area. You go down to it from the first block  
of land, and then there's a very steep climb up to a plateau . . .  
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And later:  
Once you cross the river -- and in fact, in the gorge where the river runs . . .  
[262] Mr. Sobey considered the bed of the west bank of the West Branch of the  
Wallace River to be 12 to 15 feet wide although he did not measure it. At the time of his crossing of  
it in early July of 1998, there was not a lot of water in it, but he admitted that he could not say what  
the prevailing conditions of the west bank of the West Branch of the Wallace River would be in the  
spring of the year. Other witnesses for the claimant indicated a width for the West Branch of the  
Wallace River which was narrower than that given by Mr. Sobey. Mr. Gervason and Mr. Harrison  
said it might be about 10 feet wide, with both Mr. Harrison and Mr. Gervason seeing it as narrower  
than that in some places.  
[263] Mr. Ryle, on the other hand, claimed that it was so narrow, that it might not  
even be regarded as a stream under the applicable legislation. The Board does not find Mr. Ryle=s  
assertions with respect to the narrowness of the West Branch of the Wallace River to be consistent  
with the balance of the evidence. With respect to the width of the West Branch of the Wallace  
River, the Board finds, on the evidence, that the width of the West Branch of the Wallace River in  
early July of 1998 was 12 to 15 feet; one may expect that the river could be significantly larger at  
other times of the year, such as during the spring runoff.  
[264] The Board received evidence indicating that environmental or conservationist  
groups were consulted with respect to crossings of other watercourses done in relation to the  
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Cobequid Pass Highway. Mr. Ryle, however, suggested that the claimant=s crossing would not be  
subject to environmental scrutiny. With respect to the possible impact of environmental legislation  
upon the claimant=s proposed crossing of the West Branch of the Wallace River, Mr. Ryle, in his  
oral evidence, claimed a measure of expertise in environmental legislation. Describing himself as  
having a Aparticular interest@ in keeping up with environmental regulations, he referred in the  
course of his testimony to the definition of a stream in legislation, suggesting (as the Board has  
previously noted) that the West Branch of the Wallace River is so narrow that it might not even be  
subject to the Act, testifying that the definition of a Astream@ in the legislation required Aa pretty  
substantial watercourse.@ The Board notes that the Environment Act does not contain any  
definition of a Astream@ at all. Instead, there is a definition of Awatercourse.@ The Bieren Report  
says that a permit from the Department of Environment would be necessary for the installation of a  
culvert in a water course which is 18 inches and wider. This opinion is consistent with a publication  
which forms part of Exhibit H-17 (Nova Scotia Forest Practices 2: Building Woodland Roads)  
states:  
Obtain a permit from the Department of the Environment before installing a bridge or culvert  
in a watercourse. A permit is also required for working in any watercourse that is 500 mm (18  
in.) or wider. Care should be taken when working near any streams to avoid siltation.  
[265] According to Mr. Sobey, the proposed crossing of the West Branch of the  
Wallace River would involve the placing of 13 feet of fill at the bottom of the West Branch of the  
Wallace River, to elevate the crossing from its natural level, thereby permitting Mr. Sobey to  
achieve a 20% slope on the proposed access road on the west side. Elevating the crossing still more,  
or cutting more deeply into the ground near the top of the western escarpment could reduce the grade  
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below 20%. Mr. Sobey said that a long concrete box culvert would conduct the water of the West  
Branch of the Wallace River under this fill, Mr. Sobey agreeing that the longer the culvert, the more  
problematic it may be in terms of blockages.  
[266] The claimant has made no application for any environmental permit for a  
crossing of the West Branch of the Wallace River. Mr. Sobey was not asked by the claimant to  
pursue such an application. Mr. Sobey indicated that, in the work which he had done in relation to  
the Cobequid Pass Highway, applications for environmental permits were handled by consultants  
other than himself. Mr. Sobey testified, however, that he did not anticipate there would be  
difficulties in obtaining such a permit if one were to be sought.  
[267] The Board does not find Mr. Ryle=s assertions, implied or otherwise, with  
respect to the crossing being exempt from environmental legislation to be consistent with the  
balance of the evidence. Taking into account all of the evidence before it, the Board considers that  
any crossing of the West Branch of the Wallace River of the type proposed in the Sobey report  
(which includes blocking the river with 13 feet of fill, through which a long concrete culvert would  
be run) would be a step which would require some type of environmental permission. The Claimant  
has made no application for any environmental permit.  
[268] The access roads on the western and eastern escarpment would turn sharply at  
the point where they meet, i.e., a truck proceeding down the 20% grade of the western escarpment  
would reach the proposed crossing over the river, approaching it at an angle, and then would turn  
right at the crossing, at an angle of perhaps a little under 90 degrees in order to proceed diagonally  
up the 16% grade of the eastern escarpment. It was Mr. Bieren=s opinion (with which Mr. Sobey  
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did not disagree) that commonly accepted guidelines counsel against such turns over bridges. For  
example, Nova Scotia Forest Practices 2: Building Woodland Roads (Exhibit H-17) states, in  
part:  
Bridge approaches should be straight for at least 20 m (56 ft.) before the bridge.  
[269] Mr. Ryle said in his report that an inspection by Mr. Sobey:  
Arevealed that the river and its escarpments can indeed be economically traversed,@  
In his testimony, however, Mr. Sobey specifically denied ever telling Mr. Ryle that the  
property could be economically accessed over the river. He said that he was never asked  
to provide a cost estimate for the construction, a statement consistent with his notes made  
at the time of the visit, which say:  
is it possible to build a road across the stream? Cost is not an issue at this point. [emphasis  
added]  
Moreover, he never was, at any time subsequent to being told that Acost is not an issue at  
this point@, asked to provide a cost estimate.  
[270] Mr. Sobey did say that he considered he was being asked if it was Afeasible@  
to build a crossing , meaning whether it could physically be done using normal construction  
equipment and normal construction practices, at a cost which was not Aprohibitive.@ When asked  
what he meant by Aprohibitive,@ Mr. Sobey would say only that if the cost of the construction was  
going to be:  
something like the MacDonald bridge in Halifax or . . . [the Canso Causeway] that would be  
prohibitive.  
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Mr. Sobey also agreed that he could not even provide Aan order of magnitude@ for the cost  
of the crossing or the construction of the proposed access roads over the claimant=s  
property which Mr. Harrison himself had agreed would be necessary.  
[271] On cross-examination, Mr. Ryle denied having told Mr. Sobey not to consider  
the cost of the crossing, but did agree he had simply asked him to assess the feasibility. When asked  
about his not having requested Mr. Sobey to prepare an estimate of the costs of constructing a  
crossing of the river, Mr. Ryle said:  
If I said to him [Mr. Sobey] >Provide a cost estimate,= I'm sure he would have come back and  
said >Are you or Patterson Palmer prepared to underwrite a study for maybe $5,000 or  
more?=  
[272] In the view of the Board, however, if indeed Mr. Ryle and the claimant had a  
serious intent to develop, or even to consider developing, the property east of the river, by coming  
from the western end of the property, this would mean constructing roads on the escarpments and a  
crossing of the river. Accordingly, obtaining a design from Mr. Sobey for the crossing, and for the  
roads, and cost information in relation to these, would be a necessary and important step in deciding  
what development, if any, should occur from the western end, but one which has never been done.  
Moreover, whether or not the expropriation had ever occurred, such a design (not just of the  
crossing, but of the diagonal roads down the escarpments on the west and east side of the river  
gorge) would be a necessary step to any real intention of considering the possibility of developing  
the Westchester II East property from the west.  
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Heavy Vehicles Using Access Roads  
[273] Mr. Harrison agreed that he would have to build Akilometres@ of woods  
roads, and that these roads would have to built to such a quality as to permit large vehicles to travel  
upon them, including tractor trailers, large trucks, and excavators. In contrast, Mr. Ryle, in his  
evidence, alleged that, absent the highway, an excavator could have moved across the Claimant=s  
property without being floated. Under the Ryle plan for development in the Ryle Report,  
development would occur from west to east on Westchester II East, with trees being cleared and  
blueberry fields gradually being developed initially on the western part of Westchester II East. This  
would mean that each year the excavator and related equipment would have to be working farther to  
the east on the property and would have to travel to where the development is occurring. After the  
first year or two, this would mean that the excavator would have to move, or be moved, through or  
over the previously established fields to get to the areas which were now to be developed. Given the  
topography, the distance, and the view the Board has of the evidence as a whole, the Board finds that  
equipment such as excavators would, whether or not the divided highway had been built, have been  
transported by float on the claimant=s access road or roads, and the quality of road construction for  
those, as Mr. Harrison also admitted, would have to be sufficient to permit such activity.  
[274] The claimant=s case requires, in part, that Harrison build an access road  
across the West Branch of the Wallace River with a slope of 20% on one side and 16% on the other,  
with a turn of a little under 90 degrees at the bottom. If the Board is to accept, as it does, that  
driving a logging truck down the access road (on what Mr. Ryle described as a Avery steep@ slope of  
12.482%), to enter the intersection with the Westchester Road could, in snowy conditions which  
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limit traction, lead to difficulty for a fully loaded timber truck making the turn from the government  
land access road onto the Westchester Road, it must consider, on the balance of probabilities,  
whether the claimant=s proposed access roads on either side of the river would present equal, or  
even greater, difficulties. The claimant=s proposed eastern and western escarpment roads have  
grades of 16% and 20%, respectively, travel diagonally over hills which are steeper than that, and  
intersect at a bridge crossing with a turn of a little under 90 degrees. A westbound loaded logging  
truck coming from the 656 acres to the east of the river, in snowy conditions which limit traction,  
would have to negotiate the 16% grade of the eastern escarpment, execute the sharp turn to the left  
and cross over the river, and then start back up the western escarpment road=s 20% grade (to be  
built, as the Board has previously noted, across a hillside which is still steeper). The Board  
considers that Mr. Ryle=s assertions with respect to the lack of capability of the government land  
access roads in the winter did not differentiate between the possible effect of roads being ploughed  
and not ploughed: the claimant=s position seemed to be simply that a road having a slope of 12.58%  
was simply too steep for heavy loads. If this be so, then the practicability in similar conditions  
(including winter) of the claimant=s woods roads, which are significantly steeper, seems  
problematic.  
Access from the East: Mr. Sobey  
[275] The Board notes that Mr. Sobey agreed on cross-examination that  
approaching the Westchester II East property from the eastern end, i.e., via road or right-of-way to  
the Webb Mountain Road, is safer than going up and down the steep slopes of the western and  
eastern escarpments of the West Branch of the Wallace River.  
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IX  
POUNDS PER ACRE  
[276] There was considerable dispute between the parties with respect to the yield  
per acre which should be assumed by the Board in relation to the present proceedings. The claimant  
adopted the position in the Ryle Report, which was that a yield of 4,000 pounds per acre, on average,  
for all 400 acres of blueberry land which the claimant asserted would be developed in Westchester II  
should be assumed. The Crown sharply disagreed with the claimed yield of 4,000 pounds per acre,  
asserting that the figure to be applied should be much lower C pointing, for example, to evidence  
indicating that the claimant=s average yield for its various properties in Cumberland County,  
including its Westchester properties, from 1990 to 1995 was 1,743 pounds per acre, even though  
1995 was a particularly good year.  
[277] In the view of the Board, the preponderance of the evidence (including the  
Eaton Report, the average yields in the province, the average yields in Cumberland County, and the  
average yields for the claimant=s various properties) stand in contrast to the assertions, explicit and  
implied, in Mr. Ryle=s written and oral evidence that it is reasonable to expect an average of 4,000  
pounds of blueberries per acre for each of the 400 acres to be developed. The Board will now  
review the claimant=s assertions, the yield data for the province as a whole, and the yield data  
supplied by the claimant.  
[278] The assertion by Mr. Ryle of 4,000 pounds per acre was one that Mr. Harrison  
himself supported: Mr. Omond=s original notes are to the effect that Mr. Harrison told him that a  
blueberry crop of 2 tons (4,000 pounds) per acre was the Anorm@, and that some fields in 1995  
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produced between 4,000 and 6,000 pounds. In his evidence, Mr. Omond mistakenly cut these  
figures in half initially (changing 2 tons to 2,000 pounds, or 1 ton), until counsel for the claimant  
pointed out his error, and he acknowledged it. That Mr. Harrison represented to Mr. Omond that a  
normal blueberry crop was 4,000 pounds per acre was not, however, in the view of the Board,  
disputed by the claimant: indeed, it was affirmed. For example, counsel for the claimant, in cross-  
examining Mr. Omond, asserted that Jim Harrison had told Mr. Omond that Anormal production@  
was 4,000 pounds per acre. The post-hearing submissions by counsel for the claimant also stated:  
58.  
Jim Harrison confirmed that at the date of the expropriation the Westchester I and II  
fields and the Bogle property yields were consistent with or exceeded the estimates  
contained within the development plan set out in the Ryle report.  
As will be seen subsequently in greater detail, the evidence indicates that, in 1995 (the date  
of the expropriation), the yield per acre for Westchester I, for example, was 2,894 pounds  
per acre. This is not a figure Aconsistent with,@ much less Aexceeding,@ the 4,000 pounds  
per acre assumed in the Ryle Report. Further, in closing oral submissions, counsel for the  
claimant said that Mr. Harrison:  
. . . told Mr. Omond in 1996 that his lands produced between two and three ton an acre . . .  
This position was again affirmed (although this time with respect to the Westchester  
property only, rather than the claimant=s lands as a whole) in closing written submissions  
by counsel for the claimant who said that Mr. Omond=s analysis, after talking to Mr.  
Harrison, was incorrectly based on an assumed yield  
. . . of 2000 pounds of blueberry per acre when the Westchester lands were producing at  
levels two or three times greater than that.  
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[279] In the view of the Board, any assertion by Mr. Harrison that a yield rate of  
4,000 to 6,000 pounds per acre was a normal yield rate for the claimant=s Westchester properties  
(even for the relatively high yielding small field in Westchester II West, or the much larger field in  
Westchester I) is one which is entirely inconsistent with the preponderance of the evidence,  
including the claimant=s own data for either of its Westchester fields. Likewise, the Board would  
see any assertion of 4,000 pounds per acre as being the norm for the claimant=s other properties  
elsewhere in Cumberland County to be an assertion entirely inconsistent with the preponderance of  
the evidence before the Board.  
[280] The calculations in the Ryle Report implicitly assume 4,000 pounds per acre  
as the average yield. This figure was explicitly stated by Mr. Ryle in a subsequently produced  
separate document, entitled AWestchester Lands Cash Flow Analysis@ Exhibit H-51 (which was  
introduced as an exhibit in the midst of Mr. Ryle=s oral testimony before the Board). Nevertheless,  
not even all of the text of the Ryle Report entirely agrees with the assumption of 4,000 pounds per  
acre. In the course of an analysis of cost and revenue, the report states that 2 tons (i.e., 4,000  
pounds) is the maximum of what one can expect from fully developed land:  
. . . up to two tons of berries per acre can be expected from fully developed land. [emphasis  
added]  
[281] Mr. Sibley testified in support of the Ryle position that 4,000 pounds per acre  
can be expected as an average yield. Mr. Sibley said that more fields are now producing 3,000  
pounds or more. He did, however, acknowledge that the 1994 Situation Report published by the  
provincial government (which shows him as the author) contains a chart at page 6 showing varying  
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yields per acre, the maximum of which is 3,000 pounds per acre. When asked about this, Mr. Sibley  
said that much has changed in the industry since 1993, and that increased yields can be expected; the  
Board, however, notes that the maximum in the 2000 Situation Report (H-27), which was published  
several years after Mr. Sibley=s departure from the provincial government, remains 3,000 pounds  
per acre. The full range in the 2000 Situation Report, as with the 1994 Situation Report, is 1,000 to  
3,000 pounds per acre.  
[282] The Board also notes that an interview with Andrew King (a berry crops  
technician with the Nova Scotia Department of Agriculture and Marketing in Truro) was referred to  
by Mr. Ryle, in the context of Mr. Ryle=s assertion of a necessity for salt spray protection strips, as  
Acompelling.@ That interview says that Mr. King referred to 2,400 pounds per acre as Aa fair  
average.@  
[283] The Board will now turn from the assertions made in the claimant=s evidence  
to the actual data for yields per acre relating to averages for Nova Scotia as a whole, for the fields in  
Cumberland County, and, in particular, for the claimant=s fields at Westchester.  
[284] In the table below, the figure for total production in pounds for the province as  
a whole is taken from the Situation Report. Mr. Bradley used data obtained from Statistics Canada  
for both his total production in pounds and the total harvested acreage. The production in pounds  
figure that he uses is essentially identical to that appearing in the Situation Reports. The third  
column, showing yield per acre (i.e., pounds of blueberries produced per harvested acre) is taken  
from Schedule 3 of the Bradley Report. The following are the figures from 1989 to 1999:  
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Nova Scotia Wild Blueberry Production 1989-2000  
Year  
Production (lbs)  
Situation Reports  
Production (lbs)  
Bradley Report  
(Statistics Canada)  
Harvested  
Acreage  
(Note 1)  
Yield (lbs. per acre)  
(Bradley Report)  
Yield (lbs. per acre)  
deduced from Situation  
Reports  
1989  
1990  
1991  
1992  
1993  
1994  
1995  
1996  
1997  
1998  
1999  
2000  
16,831,560  
27,994,286  
27,940,676  
33,007,621  
30,307,975  
27,182,000  
30,204,500  
29,229,000  
22,380,000  
22,227,000  
40,923,000  
-
-
n/a  
-
-
n/a  
-
-
n/a  
33,008,000  
30,380,000  
27,182,000  
30,205,000  
29,230,000  
22,380,000  
22,230,000  
40,900,000  
43,246,000  
14,180  
14,100  
14,310  
14,600  
15,146  
15,480  
16,500  
17,000  
17,900  
2,328  
2,150  
1,900  
2,069  
1,930  
1,446  
1,347  
2,406  
2,416  
2,165  
n/a  
n/a  
n/a  
n/a  
n/a  
2,485  
n/a  
Note 1: Information obtained from Statistics Canada Agricultural Division, Cat. No. 22-003-XIB.  
Provincial Average 1992 to 1995: 2,112 pounds per acre  
Provincial Average 1996 to 2000: 2,386.25 pounds per acre  
Provincial Average 1990 to 2000: 1,606 pounds per acre  
According to the above table, the average for 1992 to 1995, four years which end in the  
year of the expropriation in the present proceeding, is 2,112 pounds per acre for the  
province as a whole with, as was noted earlier, the majority of the production was in  
Cumberland County. For five years since the expropriation (1996 to 2000), the provincial  
average was 2,386 pounds per acre, with Cumberland County once again making up the  
majority of the production. Average production for Nova Scotia for the nine years between  
1992 and 2000, using Mr. Bradley=s figures, is 1,909.11 pounds per acre, with the majority  
of the blueberries which are included in this computation being harvested in Cumberland  
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County. The nine years making up the average of 1,909.11 pounds per acre include, close  
to the middle of the period, the year of expropriation, 1995. 1995 also happens to be  
regarded as a very good year for blueberry production, as was 1999, which is near the end  
of the period.  
[285] As a check on the Bradley figures, a provincial average yield per acre can be  
deduced from the 1994 and 2000 Situation Reports. The 1994 Situation Report (Exhibit H-26) states  
that 1993 total provincial production for lowbush blueberries was 30,307,975, with about 28,000  
acres being in production, of which about half is Ain crop@ each year, because of the two year  
pruning cycle. The figure of 28,000 acres being in production, or 14,000 acres in crop in a given  
year, is similar to the figure obtained by Mr. Bradley from Statistics Canada for the same year  
(14,100 acres). If one divides 30,307,975 pounds by 14,000 acres, one obtains an average yield of  
2,165 pounds per acre for 1993. The 1999 Situation Report notes that 1999 yielded a record crop of  
40,923,000 pounds when, after a hot, dry summer, Athe rains came at the correct time, just a few  
days before the harvest.@ According to the 2000 Situation Report, about 33,000 acres were in  
production in 1999. If one, again, assumes that half of the 33,000 acres which were in production  
were actually in crop in 1999, one then divides 41 million by 16,500, and obtains a yield of 2,485  
pounds per acre for the record year of 1999.  
[286] The Board notes that these two figures from these situation reports (2,165  
pounds per acre for 1993, and 2,485 pounds per acre for 1999), are reasonably consistent with the  
figures appearing in Schedule 3 of the Bradley Report (2,150 pounds per acre and 2,406 pounds per  
acre, respectively). The Board also notes that Mr. Bradley=s figures for the total annual production  
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in pounds for Nova Scotia (column 2) are consistent with those which appear in the situations  
reports. The Board, on the balance of probabilities, accepts the figures appearing in the Bradley  
Report with respect to the average yields per acre in Nova Scotia for the period 1992 to 2000.  
[287] That production figures, even on a province wide basis, vary to a remarkable  
degree can be seen by noting that, while 30.2 million pounds of wild blueberries were produced in  
the province in 1995, this fell to a little over 22 million pounds in both 1997 and 1998. These low  
years were followed in 1999 by what the 2000 Situation Report describes as the record crop of 40.9  
million pounds. Dr. Eaton noted that data available to him indicated that the 2000 yields remained  
high, but there was a drop, once again, in 2001. He noted that in each year, there are areas within  
the province which have relatively low yields, while other areas have relatively high ones. For  
example, there may be high yields in Cumberland County (where the subject property is located),  
and low yields in Colchester County in one year, and then the reverse in another year.  
[288] With respect to yields in Cumberland County, the 2001 Situation Report says  
that 65% of Nova Scotia=s present production comes from Cumberland County. The 1994 Situation  
Report, prepared by Mr. Sibley, says that about 75% of production comes from Cumberland County.  
This means that the provincial average yield per acre is heavily weighted towards Cumberland  
County, a county which, according to the evidence, tends to have better yields per acre for a number  
of reasons. Moreover, a proportion of provincial production drawn from Cumberland County was,  
the Board finds, higher in 1995, and in the years immediately preceding than it was in 2000 (75%;  
65%).  
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[289] Ms. Haylock interviewed Dale McIsaac in January of 1999, while Mr.  
McIsaac was still employed by the Nova Scotia Department of Agriculture. He told her that, on  
average, blueberry fields in Cumberland County produce 2,250 pounds per acre, which he said was a  
higher figure than the provincial average. This assertion is consistent with the information  
appearing in the 1994 and 2000 Situation Reports, which state that yields in Cumberland County are  
Agenerally higher@ because at of long periods of cultivation, continual improvement, and Anearly  
ideal@ soil and climactic conditions@. Mr. Sibley, on cross-examination, said he would not disagree  
with the 2,250 pounds per acre figure attributed by Ms. Haylock to Mr. McIsaac.  
[290] Mr. Sibley was not able to, on cross-examination, state the average yield of a  
blueberry field in Cumberland County; he was also not able to give a figure for the average yield of  
a blueberry field in the Westchester area. The Board found this surprising, given that Mr. Sibley  
was asserted to be an important basis for the assumption in Mr. Ryle=s report that 4,000 pounds per  
acre was reasonable, and also given Mr. Sibley=s testimony in support of the Ryle Report and the  
assumptions which it contained.  
[291] The Board also notes that Mr. Sibley, in his evidence, associated increased  
disease in blueberry plants if Aa lot of fog and dampness@ is present. In Mr. Harrison=s evidence, in  
which he said his family had regarded their Westchester property as being Asome of our best  
producing land,@ he attributed this to, in part, it being a property in which there was Anot quite as  
much heat and maybe more fog and stuff, moisture in that area.@  
[292] Mr. Sibley=s evidence, then, is marked by a paucity of numeric data, whether  
relating to Cumberland County as a whole, or particular fields belonging to the claimant. In contrast  
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to the absence of numeric data in Mr. Sibley=s evidence, Dr. Eaton=s report and oral evidence  
contained specific reference to actual yields per acre, with references to test fields from which he has  
gathered data over the years, as well as data from other sources, including the claimant=s fields.  
With respect to the yield per acre (4,000 pounds) assumed in the Ryle Report, Dr. Eaton=s report  
concludes that:  
. . . It appears . . . that the potential yield estimates given in the Ryle report are inflated. In  
addition, the Ryle report does not provide any yield data from the Harrison and Bogle fields to  
support the claims of 4000 pounds per acre average yield . . . [emphasis added]  
Average Yields in Pounds Per Acre for Properties of Claimant  
[293] As the Board notes elsewhere, the data respecting the identity, area, and total  
production for particular fields belonging to the claimant is, in many instances, a matter of  
considerable doubt, which means there is a significant element of uncertainty in yields per acre for  
particular of the claimant=s fields. Whatever the uncertainties of the data relating to specific fields,  
the claimant did supply (in response to a request for information from the Crown, found in Exhibit  
H-33) total blueberry yields for all of its properties for the years 1990 to 2000, with a statement of  
the acreages involved and a calculation of the yield in pounds per acre. This information is  
summarized in the table, below. The yield in pounds per acre shown in Exhibit H-33 is the first  
figure; the yield in pounds per acre deduced by Mr. Bradley, and shown in Schedule 2 in his report,  
is the figure in square brackets.  
CLAIMANT=S AVERAGE YIELD PER ACRE FOR 1990 - 2000 (All Cumberland County Properties;  
Data Supplied by the Claimant H-33)  
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Year  
Total Yield  
Acres  
Yield in Lbs/Acre  
(Claimant H-33/  
Bradley  
1990  
1991  
1992  
1993  
1994  
1995  
1996  
1997  
1998  
1999  
2000  
2001  
145,365 [1,264]  
271,232 [2,170]  
170547 [1421]  
292,385 [2,166]  
160,156 [1,232]  
463,657 [2,208]  
236,952 [1,580]  
275,555 [1,198]  
263,340 [1,721]  
282,913 [1,108]  
320,816 [1,604]  
115  
125  
120  
135  
130  
210  
150  
230  
150  
230  
200  
1,264  
2,170  
1,421  
2,166  
1,232  
2,208  
1,580  
1,198  
1,756  
1,230  
1,604  
1,069  
1,744  
Avg.  
Lbs/Acre  
1990-1995  
-
-
-
-
-
-
Avg.  
Lbs/Acre  
1996-2000  
1,474  
1,621  
Avg.  
Lbs/Acre  
1990-2000  
[294] The average yield in pounds per acre for the period 1990 to 2000, for all of the  
claimant=s properties in Cumberland County, is 1,621 pounds per acre, using the claimant=s figures  
as appearing in Exhibit H-33. The Board sees Mr. Bradley=s figures as being consistent with, and  
generally supportive of, the accuracy of these figures. The average of 1,621 pounds per acre for  
1990 to 2000 also compares well with Dr. Eaton=s calculated average for the period 1991 to 2002,  
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which was 1,571 pounds. His report (page 3, adjusted for acreage in his oral evidence) states that  
the average yields for the claimant=s property were below 1,500 pounds per acre in six of the 13  
years studied. For the period 1990 to 1995, the average yield in pounds per acre for the claimant=s  
properties is 1,744.  
[295] The claimant does caution (Exhibit H-33) that the numeric information for the  
period 1990 to 1995 Amay contain inaccuracies.@ For 1996 to 2001, it is 1,474 pounds per acre. In  
the view of the Board, the fact that field development work (rock picking, land levelling, etc.) has  
been carried out since 1995, at various times in various fields, makes the data for that period (i.e.,  
1995 and onward) less reliable as a reasonable indicator of expected performance. Further, there  
was evidence that drought has affected some crops since 1995, 2001 being referred to in evidence as  
Aprobably one of the worst drought years in history.@  
[296] An additional element of uncertainty arises from (in addition to the rock  
picking and land levelling activities which were underway), and the actual expansion of fields  
which, according to the claimant=s evidence, was ongoing since 1995. The claimant was increasing  
the number of acres in production from particular fields during that period. This introduces a further  
element of uncertainty with respect to the areas of fields which were in production in a particular  
year, and their particular state of development.  
[297] 1990 to 1995 was a period in which field development (rock picking, land  
levelling, etc.) was not going on; 1995, considered to be an excellent production year, is included in  
the period; 1995 is the year of the expropriation. In contrast to the figure of 4,000 pounds per acre  
(which Mr. Ryle urges the Board to accept as applicable to lands which might one day be developed  
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in Westchester II East, but which at present, are simply woods), the claimant=s average performance  
for all of its Cumberland County fields in 1990 to 1995 was 1,744 pounds per acre.  
[298] While the Board considers 1995 and onward to be a period in which it should  
give little weight (for reasons explained above), it does consider the years 1990 to 1995 to be a  
reasonably good indicator of the claimant=s actual performance, unimpaired by development work,  
drought, or, as Mr. Ryle might argue, salt spray.  
[299] The Board considers that what evidence it has before it with respect to the  
yield per acre of particular fields or properties belonging to the claimant is uncertain and less reliable  
than the figures for average performance of the claimant=s properties in Cumberland County as a  
whole. The data in H-37, supplied in the fall of 2002 by the claimant in response to a request for  
information from the Crown, shows total yields (total production in pounds, not to be confused with  
yield per acre) for a variety of individual fields, but does not contain references to the individual  
field sizes. In other words, while the claimant supplied production data to the Crown when Mr.  
Bradley apparently requested it in the fall of 2002, it did not include yields per acre for particular  
fields in particular years, nor did it state the acreages of those fields in those particular years, at least  
on the same pages as the production data. The Board has attempted to determine field size from  
other parts of the evidence, but eventually concluded there was significant uncertainty in linking  
some of the production data in H-37, which shows the pounds produced in particular fields, with the  
acreages for those particular fields C the latter being, of course, necessary to determine yields per  
acre. Some of this confusion may arise from different names assigned to fields. For example,  
documentation supplied by the claimant states that 73,001 pounds of blueberries were harvested  
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from AWindham.@ AWindham@ is shown in documentation supplied by the claimant as having 30  
acres in 1993 which were fully developed, which would (if correct) mean a yield of 2,433 pounds  
per acre for 1993. Blueberry fields are ordinarily harvested every two years. The entry for 1995  
(two years after 1993) refers not to AWindham,@ but to AWindham Upper & Lower.@ The data for  
1997 refers to AWindham@ once again, while the 1999 data refers to AWindham Upper Field@ and  
AWindham Lower Field.@  
[300] With the above uncertainties in mind, the Board will now refer to two of the  
claimant=s properties in the Westchester area, being the Westchester I Abig field@ (60 acres)  
together with the Westchester II Asmall field@ (6 to 8 acres), in the light of the aggregate data  
supplied by the claimant in Exhibit H-33.  
[301] The Westchester I Big Field has 60 acres. In 1995 (one of the best years on  
record for the province as a whole, according to the evidence of Dr. Eaton and the others who gave  
evidence before the Board), 173,641 pounds of berries were harvested from the 60 acres of  
developed blueberry land, for a yield per acre of 2,894 pounds. The provincial average yield per  
acre in 1995 was 2,069. If one moves beyond 1995 in examining the claimant=s data, one finds  
significant reductions in pounds per acre. Land levelling and rock picking has been done on the  
claimant=s various properties in Cumberland County since 1995. In contrast to its 1995 yield per  
acre of 2,894 pounds, 60 acres of Westchester I yielded only 1,569 pounds per acre in 1997 (when  
the provincial average was 1,446), and 782 pounds per acre in 1999 (when the provincial average  
was 2,406). The Board gives relatively little weight to the lower yields obtained by the claimant  
during this period in which rock picking and land levelling was going on in certain of its fields.  
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[302] Comparison of the 1995 data for Westchester I (2,894 pounds per acre) and  
the 1993 data for Westchester I does not, however, present such a problem, as the rock picking and  
land levelling operations which Jim Harrison has engaged in since taking over the management of  
the claimant did not occur in either of these years. In 1993, the Westchester I Big Field produced  
85,547 pounds of blueberries, for a yield (assuming 60 acres) of 1,425 pounds per acre. In 1993, the  
provincial average was 2,150 pounds per acre.  
[303] The Board turns now to the Westchester II Asmall field.@ This field=s 1995  
yield was a key element in the claimant=s case, being repeatedly referred to as justification for the  
Ryle Report=s assumption of 4,000 pounds per acre as an average yield for any new blueberry  
property developed in Westchester II East. The Westchester II small field produced 38,710 pounds  
of blueberries in 1995. There was some dispute in the evidence before the Board as to whether or  
not the blueberry field in Westchester II West was, in 1995, 8 acres or 6 acres. If the field was 8  
acres in size in 1995, its yield per acre was 4,839 pounds; if it was 6 acres, its yield per acre was  
6,452 pounds.  
[304] The Board concludes that the area of the field in 1995 was 8 acres. Eight  
acres was the area originally stated in information supplied through the claimant=s counsel; it was  
only later that the claimant asserted that the correct acreage was 6 acres. Mr. Harrison testified he  
believed 6 acres of the Westchester II field were harvested in 1995, with the field going to 8 acres in  
1997, but he agreed that Exhibit H-35 (a letter from the claimant=s counsel to the Crown on October  
7, 2002, but recanted by the claimant=s counsel in a letter dated December 4, 2002), showed  
Westchester II as having 6 acres between 1990 and 1994, and going to 8 acres in 1995 and  
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thereafter. The figure of 8 acres for 1995 also has some support from the hand written notes of Mr.  
Omond of June 1996, which indicate that Mr. Harrison told him at that time that he had Aeight to ten  
acres already in production.@ In his oral examination, Mr. Ryle made varying references to 8 acres,  
8.37 acres, and nine acres, with page 2 of the Ryle Report stating the Westchester II Acurrent land  
holdings@ as Aapprox 10 acres@ in blueberries (from which Dr. Eaton inferred, for the purposes of  
his initial yield calculations that there were indeed 10 acres in production at Westchester II West, an  
assumption which he corrected in his oral evidence).  
[305] Taking into account all of the evidence, the Board finds the area of the  
blueberry field in Westchester II West in 1995 was 8 acres, rather than 6 acres. Given a total yield  
in 1995 for the Westchester II small field of 38,710 pounds, the yield for this field in 1995, is 4,839  
pounds per acre. While the total yield of the Westchester II field was 38,710 pounds in 1995, its  
total yield in 1993 was less than half that (16,057 pounds). If 8 acres were present in 1993, the yield  
would be 2,007 pounds per acre; if one assumes 6 acres were present in 1993, the yield would have  
been 2,676 pounds per acre. In 1993, the average yield for Nova Scotia was 2,150 pounds per acre.  
Dr. Eaton=s report calculates the average yield for the Westchester II West (small) field to be 2,669  
pounds per acre in 1997, 1,821 pounds per acre in 1999, and 1,683 pounds per acre in 2001. The  
Board considers that the data indicates that the 6 or 8 acres of Westchester II West do perform above  
average, in comparison to the balance of the claimant=s holdings and provincial averages as a  
whole. Given, however, the uncertainty of the field areas in both 1993 and 1995, and, in any event,  
their relatively small size, the Board considers that average yields per acre deduced for Westchester  
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II West are less reliable than those for a larger field, such as Westchester I, which contains 60 acres,  
and has contained 60 acres for some years.  
[306] The Board will note in passing here that the Bogle property appears to have  
similar uncertainties with respect to area. The Ryle Report states at page 2 that the Bogle lands  
contained Aabout 5 acres of fully developed blueberry land,@ while Exhibit H-20 shows two fields,  
one of 5.29 acres (2.14 hectares) and the other of 1.36 acres (.55 hectares), with a Abuffer zone@ of  
.49 acres (dimensions only, rather than area, given on the sketch). The claimant=s post-hearing  
brief, on the other hand, states that the existing blueberry field area on the Bogle property is 12.4  
acres. Given the inconsistencies of the information before the Board in place of evidence and  
submissions, and the relatively small size of the Bogle field, reliable calculation of its average yield  
per acre carries with it, in the Board=s view, risks at least equal to, and probably greater than, those  
with respect to the blueberry field in Westchester II West.  
[307] It is generally accepted that some parts of blueberry fields sometimes reach or  
exceed 4,000 pounds per acre C indeed, Dr. Eaton freely acknowledged that portions of certain fields  
have, under favourable conditions, yielded up to 8,000 pounds per acre. Nevertheless, he expressed  
the opinion, which he reinforced with data relating to specific properties as well as to provincial  
averages, that average yields are consistently well below this figure.  
[308] In a group of pollination study fields which Dr. Eaton followed over an 11-  
year period, the average yield was 2,640 pounds per acre. The high was 3,691 pounds per acre (with  
a standard deviation of "1,533 pounds) in 2000, while the low per acre in the study fields was 2,005  
pounds ("1,216 pounds) in 1998. He referred also to data in relation to fields near Westchester II,  
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which showed significant yield variation, with average yields for two fields being below 2,000  
pounds per acre at one (which he described as having sandy soil and in a valley which might deprive  
it of rain) yielding only 1,551 pounds per acre in 1999.  
[309] Dr. Eaton noted that the same field could deliver widely diverging yields from  
harvest to harvest, depending on a variety of factors, the most important being weather. 1995, from  
all of the evidence before the Board, was an excellent year for blueberry yields. To illustrate the  
effects of weather, he noted that none of the low lying blueberry fields in Colchester County  
produced any blueberries in 1996, because the temperature fell to -8 degrees celsius on June 22,  
1996, with the frost having no effect on higher ground, but destroying the crops in low lying areas.  
This, he noted, illustrated how Aa one shot event@ can be extremely damaging to blueberries, adding  
sardonically: Ait=s a great crop to work with.@ With respect to the threat of frost, the Board notes  
that the subject property, being on higher ground, is considered relatively safer from the effects of  
frost.  
[310] The Board concludes from the evidence that an important factor in average  
yield for wild blueberry plants arises from the very fact that the plant is not genetically constant. In  
contrast to the high degree of standardization of typical modern hybrid agricultural crops, lowbush  
or wild, blueberries have a genetic variability which is, as Dr. Eaton characterized it, Aextreme.@ He  
said that when blueberry plants are looked at in the fall, it is possible to see Aliterally hundreds of  
different shades of colour@ in the same field because of the different individual types of plants, each  
with its own genetic pattern, growing in the field.  
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[311] By way of example, Dr. Eaton referred to the varying characteristics of the  
fields owned by other growers along the Webb Mountain Road, which runs to the south of and  
roughly parallel to Westchester II East, some of which are much closer to the Westchester II East  
proposed blueberry fields than the existing small field in Westchester II West. Because of this  
genetic variation, Dr. Eaton said that it is Avery common@ to find two clones close together, one  
loaded with berries, and one having very few. About the likely yield per acre for a large field, from  
the production yielded by an individual clone, or by the clones occupying a relatively small area.  
[312] In the view of the Board, this factor is one to be kept in mind in evaluating the  
yield per acre of the Westchester II West field. The Board has found this field to have been 8 acres  
in 1995, while it may have been just 6 acres in 1993. There may well be a higher proportion of high  
yielding clones within that field; to assume that a similar proportion of genetically similar clones, in  
the same density, with the same output, would be present throughout Mr. Ryle=s proposed 400 acres  
of blueberry lands in Westchester II East is not, on the evidence before the Board, reasonable. That  
there are significant variations in the type of blueberry plants which may be found was  
acknowledged by Mr. Sibley in his testimony. For example, he said that in his visit to Westchester  
II East on July 3, 1998, he saw, within the blueberry population of the property, a type of blueberry  
plant known as Asour top,@ a common name for a less commercially attractive species of blueberry.  
This is found more often in fields developed from woodland.  
[313] Dr. Eaton noted as well that the number of blueberry stems per acre also  
varies considerably, with some recent data indicating that the number of stems per acre can range  
from 23 million to 50 million. There are also variations with respect to whether a soil is heavy or  
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sandy, water draining out from the latter more quickly than the former, so that drought conditions  
manifest themselves more rapidly. Moreover, a field=s yield may be affected simply by sloping  
somewhat to the east (rather than the west), so that it gets greater benefit from the rising sun.  
[314] The Board notes, as well, that if one looks simply at total yields, 1995 was a  
remarkably good year for the claimant, as can be clearly seen by examining the data for 1990 to  
2000, as shown in the table appearing earlier in this decision: for example, the claimant=s  
production was about 464,000 pounds in 1995, but was only about 160,000 pounds in 1994, and  
about 237,000 pounds in 1996. 1995 is the only year in which the claimant=s production (about  
464,000 pounds) ever exceeded 400,000 pounds; moreover, in only one other year, between 1990  
and 2000, did the claimant exceed 300,000 pounds.  
[315] The Board finds that there will be not only variations between fields, but  
variations within the same field from year to year, and variations within a field in the same year, i.e.,  
that the yield from one part of a field may, in a particular year, be extremely high (as much as the  
8,000 pounds per acre noted by Dr. Eaton in a portion of the very productive Rushton field near  
Westchester II East), while another part of the same field, with different species of blueberry plants,  
different densities of rhizome growth, different soil conditions, different slope or any of the other  
myriad of factors which may have effect, may have achieved a much lower yield. Blueberries as a  
crop are evidently, as Dr. Eaton said, Aa great crop to work with,@ fraught with more uncertainty  
than other agricultural crops C in part, the Board infers from the evidence, because the product is  
indeed wild, not restricted to one genetically pure species, and quite unlike the more common  
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farming experience of annually planting a genetically pure crop, with known and reliable  
characteristics, which occurs with many other crops.  
[316] The Board concludes from its examination of the published documentation,  
such as the 1994 and 2000 Situation Reports, together with such yield data as is discernable from the  
information supplied by the claimant to the Crown, that this data is more consistent with the  
assertions made by Dr. Eaton than it is with the assertions made by Mr. Ryle, Mr. Sibley, or Mr.  
Harrison.  
[317] Taking all of the evidence into account, the Board prefers the evidence of Dr.  
Eaton to that of Mr. Ryle and Mr. Sibley.  
[318] For all 400 acres which the claimant says it would develop under the Ryle  
plan, the claimant asks the Board to adopt an average yield of 4,000 pounds per acre. Average  
yields, as explored in detail above, are significantly below this, with, again, extraordinarily wide  
variability. Even if, as Mr. Sibley argues, yields will gradually rise, it is clear that yields are subject  
to (by comparison to more normal agricultural crops) extremely wide variations. The average yield  
per acre referred to by Dr. Eaton in his 11 year study involving fields in which pollination studies  
were being carried out was 2,640 pounds per acre. Mr. King, in the article quoted by Mr. Ryle, said  
that 2,400 pounds per acre was a Afair average.@ Mr. McIsaac told Ms. Haylock that blueberry  
fields in Cumberland County produce on average 2,250 pounds per acre, and Mr. Sibley did not  
quarrel with this figure. Moreover, Cumberland County is regarded as performing above the  
average in Nova Scotia. The Nova Scotia average yields can be compared to the claimant=s average  
for its Cumberland County properties between 1990 and 1995 of 1,744 pounds per acre, with the  
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Nova Scotia 1992 to 1995 average being 2,112 pounds per acre. Westchester I, which is nearer the  
subject property than any of the other properties owned by the claimant, had an average yield of  
2,894 pounds per acre in the excellent year of 1995 (when the Nova Scotia average was 2,069  
pounds per acre), while in 1993, it was 1,425 pounds per acre (when the Nova Scotia average was  
2,150 pounds per acre).  
Average Yield Per Acre  
Province  
lbs/acre  
Harrison Blueberry Cumberland County  
(115-230 acres)  
Westchester I  
(60 acres)  
lbs/acre  
Westchester II West  
(6 to 8 acres)  
lbs/acre  
lbs/acre  
1990-1995  
1996-2000  
1993  
2,112  
1,907  
2,150  
2,069  
1,744  
1,474  
2,166  
2,208  
1,580  
1,198  
1,756  
1,250  
1,604  
N/A  
1,425  
2,894  
2,676  
4,839  
1995  
1996  
1997  
1,446  
2,406  
N/A  
1,569  
782  
2,669  
1,821  
1,683  
1998  
1999  
2000  
2001  
N/A  
[319] The Westchester II West small field does, on the evidence, exhibit above  
average performance. In 1995, the average yield per acre, for 8 acres, was 4,839 pounds. The  
Westchester II small field, however, has only exceeded, or even close to reaching, 4,000 pounds per  
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acre in just one year (1995). In 1993, the average yield per acre of the Westchester II small field  
was 2,676 pounds per acre (assuming the field was 6 acres, rather than 8 in that year). This is still,  
quite clearly, a performance better than that of Westchester I in the same year. Even if the  
performance of the Westchester II field indicated that it produced an average yield of 4,000 pounds  
per acre (which it does not), the Board finds that the preponderance of the evidence does not support  
generalizing from this small field to the projected 400 acres of blueberry fields which the Ryle  
Report hypothesizes will be established in Westchester II East. The Board considers that the  
evidence with respect to variations between fields, and variations within fields, makes it clear that  
the presence of a good producing 8 acre portion of land at Westchester II West does not reasonably  
permit the Board to extrapolate that performance to 400 acres extending for a distance of up to 5  
kilometres, through a river gorge, over rolling hills, and through lands at present occupied by dozens  
of stands containing different types of trees, to the eastern end of Westchester II East. The claimant  
argues that the Board should adopt a figure for all future crops on all 400 acres of blueberry lands,  
which are as yet undeveloped forest, which equals the best performance of its best performing field  
(and that being a small one of only 8 acres) in the best year ever achieved by the claimant. On the  
balance of probabilities, the Board is not persuaded that such a figure is appropriate.  
Finding  
[320] The Board finds that, as a result of a variety of factors, the average yield per  
acre for blueberry fields varies widely. Moreover, the average yield per acre for a particular field  
can vary significantly from year to year. Further, within a particular field, there can be significant  
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variations, arising from such subtle differences as slope or soil conditions. Only one field of all of  
the claimant=s holdings throughout Cumberland County, being the small Westchester II field of  
approximately 6 to 8 acres, has ever reached a yield of 4,000 pounds per acre, and it has done this  
only once, in 1995, when it reached 4,839 pounds per acre. The 1993 yield for the same field was at  
2,676 pounds per acre. The 60 acre Westchester I field had a yield in 1995 of 2,894 pounds per acre,  
and in 1993, of 1,425 pounds per acre. In 1995, the claimant=s average yield in pounds per acre for  
all of its holdings in Cumberland County was 2,208 pounds per acre. The 1995 provincial average  
was only about 6% less than this, at 2,069 pounds per acre.  
[321] The 1990-2000 provincial average, the majority of which is drawn from  
Cumberland County, is 1,606 pounds per acre. The provincial average for 1992 to 1995 (the year of  
the expropriation) is 2,111.75 pounds per acre. The 1996 to 2000 provincial average is 2,386  
pounds per acre, while the 1996 to 2000 average for the claimant (again, a period in which  
significant land levelling and rock picking was going on) was 1,474 pounds per acre.  
[322] Mr. McIsaac is, in the view of the Board, reliably quoted as having said that  
average production in Cumberland County is 2,250 pounds per acre, a figure with which Mr. Sibley  
(upon whom Mr. Ryle said he relied) did not quarrel.  
[323] On the basis of the evidence which is before it, the Board considers that an  
average yield for the, at present at least, entirely hypothetical blueberry fields of Westchester II East  
could reasonably be set at less than 2,500 pounds per acre. The Board does, however, consider that  
the evidence before it does point to a gradual increase in yields per acre, a trend which may  
continue. The Board also considers that the philosophical approach to expropriation cases as set out  
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in cases such as Dell requires the Board, insofar as possible, ensure that a claimant is adequately  
compensated for losses actually incurred. With the Dell approach in mind, and the evidence before  
it, the Board sets, for the purposes of this proceeding, for developed blueberry lands in Westchester  
at 2,500 pounds per acre; it specifically rejects the figure of 4,000 pounds per acre proposed by the  
claimant.  
X
PRICE PER POUND OF BLUEBERRIES  
[324] The price per pound for blueberries which should be used for purposes of  
calculating loss in the present proceeding was also a matter of considerable difference of opinion  
among the witnesses. The price per pound for blueberries, for purposes of this proceeding, is really  
comprised of two different prices: the first is the farm gate price or grower=s price; the second is the  
additional price paid to a person who is a broker, or buyer. The Board will deal with the second  
price, i.e., the broker=s price or buyer=s price, first.  
Broker=s Premium  
[325] The blueberry industry in Nova Scotia contains three principal levels, which  
can be categorized, roughly, as very large processors, buyers, and growers. In the first level, there  
are a few, very large, players, such as Oxford Frozen Foods. Oxford owns or controls over 10,000  
acres of producing blueberry properties in Canada and the United States, and is the biggest  
enterprise of its kind in the world. Processors like Oxford own property, but also buy berries from  
others, process berries, and market them for consumption by consumers. The next level down in  
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size are those who are usually large growers, but also Abuyers@ or Abrokers@ (the term most  
commonly used in the evidence given in the present proceeding), able to buy berries from other  
growers and resell them to processors such as Oxford. The 2000 Situation Report describes the role  
of the buyer as follows:  
The buyer is an important link in the marketing chain and has done a lot to develop the  
blueberry industry in Nova Scotia. The buyer has helped to create a ready market for many  
small growers and has also provided them with a great many necessary custom services.  
There are approximately 25 buyers in the province of Nova Scotia at present. Most of these  
buyers are also large growers.  
Many buyers supply the necessary harvesting and marketing equipment, such as rakes,  
pails and field cleaners, to growers. Sometimes, they provide picking crews (paid for the  
growers) to harvest the crop . . .  
Most buyers have collecting points or receiving stations set up where they receive the  
blueberries. At these stations, the berries are weighed, cleaned and then shipped to a  
processing plant . . . [emphasis in original]  
[326] Brokers receive what is variously referred to as a commission, premium, or  
brokerage fee calculated in cents per pound, which is added on to the grower=s price or farm gate  
price. The brokerage fee paid by processors to brokers is payable both for the blueberries which  
brokers buy from other growers and for the blueberries which they themselves have grown.  
[327] The Board has elsewhere noted that there are two corporate entities owned  
and operated by Mr. Harrison which are involved in the blueberry business; the Board has further  
noted that the distinction between the, for example, corporate entity which is the claimant in the  
present proceeding, Harrison Blueberry Enterprises Limited, and Jim Harrison, as an individual, was  
sometimes not apparent in the evidence. This ambiguity is present with respect to the issue of the  
broker=s price or buyer=s price, counsel for the claimant on more than one occasion referring to  
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AMr. Harrison=s 10 cents per pound premium.@ Despite this confusion in the evidence, the Board  
will consider, for the purposes of this proceeding, that the broker=s fee is payable to the corporate  
claimant, not to Jim Harrison as an individual.  
[328] The claimant, then, is one of only approximately 25 buyer, or broker, firms in  
Nova Scotia. Moreover, it is, according to its counsel, one of the larger firms in this select group,  
apart from the giant Oxford Frozen Foods.  
[329] Mr. Keough testified that the claimant=s brokerage business has considerably  
expanded since the date of expropriation, with the claimant selling twice as many blueberries as he  
produces. Mr. Harrison said that, since 1995, his brokerage business has handled in its best year a  
million and a half pounds of blueberries, including the claimant=s own berries, with the volume for  
2002 being estimated at 1.1 to 1.2 million pounds.  
[330] There was varying evidence before the Board as to the level of brokerage fee  
which should apply in the present proceeding.  
[331] Mr. Bradley, although he had been informed that a premium of 10 cents per  
pound was at the top end of the range actually paid to brokers, assumed, for the purposes of his  
calculations, that a premium of 10 cents (as claimed in Mr. Ryle=s evidence) was indeed paid.  
[332] Mr. Bradley said that Mr. McIsaac (a private blueberry consultant, formerly  
with the provincial Department of Agriculture, and a person relied on by other witnesses, including  
Ms. Haylock and Mr. Keough, as a source of various types of information) quoted to him a range of  
5 to 10 cents per pound, noting that he (Mr. McIsaac) had never seen a premium higher than 10  
cents. The evidence is that Mr. Wood said that the fee varies from 6 cents to 8 cents per pound, a  
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range within that attributed to Mr. McIsaac, but with a maximum which is 2 cents lower than Mr.  
McIsaac=s maximum.  
[333] Mr. Ryle=s evidence at least implies that Mr. Harrison=s brokerage fee was  
fixed at 10 cents. Mr. Sibley seemed to suggest that the buyer or brokerage fee Avaries@ and that he  
did not personally know what Mr. Harrison=s brokerage fee was; he had simply been told by Mr.  
Ryle that it was 10 cents per pound.  
[334] Mr. Harrison said that the range he received was from 8 cents to 13 cents, and  
that he received an average brokerage fee of 10 cents per pound. Mr. Harrison=s claimed average of  
10 cents, then, is at the maximum of Mr. McIsaac=s range, and 2 cents above the maximum of Mr.  
Wood=s range. Mr. Harrison=s assertion that he gets up to 13 cents per pound is inconsistent with  
Mr. McIsaac=s statement that he has never seen a premium higher than 10 cents, and is likewise  
inconsistent with Mr. Wood=s range of from 6 cents to a maximum of 8 cents. In percentage terms,  
Mr. Harrison=s assertion of his maximum brokerage fee of 13 cents is 62.5% higher than the  
maximum of Mr. Wood=s range (8 cents) and 30% higher than the maximum of Mr. McIsaac=s  
range.  
[335] The Board further notes that there is no guarantee, according to the evidence,  
that the claimant will continue to receive broker=s commissions, much less broker=s commissions  
of the level he purportedly receives, which are remarkably C and perhaps even uniquely C high.  
[336] The Board also notes that there has been no disclosure by the claimant of the  
expenses which would be associated with the brokerage work. It appeared to the Board that Mr.  
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Ryle, as well as Mr. Bradley, simply added on the deemed brokerage premium to the grower=s  
price. In the view of the Board, this is inconsistent with the evidence before the Board which  
indicates that a brokerage premium (or buyer=s price) is not simply a higher price payable to  
persons having status of brokers/buyers, but is a higher price which reflects, at least in part, the  
additional services rendered by brokers/buyers, as apposed to simple growers. The work involved in  
earning a brokerage fee was explained in some detail in the oral and written evidence before the  
Board, including that of Dr. Eaton, and the 2000 Situation Report quoted above. The claimant=s  
evidence shows that it has constructed and operates a receiving shed, in which the blueberries which  
it buys from others, as well as its own, are weighed, cleaned, and stored temporarily (the claimant=s  
receiving shed does not have a refrigeration facility), after which they are trucked from the receiving  
shed to wherever the processor is located. The receiving shed presently used by the claimant was,  
according to Jim Harrison, completed in 1995. It is a commercial building, and significantly larger  
than the old farm building which had been in use previously, a reflection, according to Mr. Harrison,  
of his plans in 1995 to expand the brokerage side of the claimant=s operations, as well as to grow  
more berries itself. The bulk of the claimant=s sales of berries as a broker or buyer have been to an  
operator in Prince Edward Island, although berries have also been sold to processors in Quebec and  
Maine. The evidence before the Board indicates, not surprisingly, that expenses would be incurred  
by the claimant in relation to these services, but the claimant did not choose to provide any evidence  
with respect to these. If the Board were to accept the claimant=s assertion of a fixed, or average,  
premium of 10 cents per pound, as being net of all expenses, such a figure would not only exceed the  
gross figure indicated by the preponderance of the evidence (apart from that of Mr. Ryle and Mr.  
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Harrison), but would ignore the costs incurred by the claimant in relation to his work as buyer or  
broker. The broker=s premium is not simply a bonus which has associated with it no expenses.  
Nevertheless, the Board considers that it has little, if any, evidence before it to permit it to make an  
accurate estimate of those expenses, and considers that the reason for this is the failure of the  
claimant to meet its burden of proof in relation to it.  
Farm Gate Prices  
[337] The evidence before the Board with respect to the level of the farm gate price,  
or grower=s price, fell into two essentially divergent groups: the first group is the claimant=s  
evidence (through Mr. Ryle, Mr. Sibley, and Mr. Harrison). It was claimed (in Mr. Ryle=s written  
report, in Mr. Harrison=s oral evidence, and in at least the earlier parts of Mr. Ryle=s oral evidence)  
that a farm gate price of 75 cents per pound should apply, and was indeed Aconservative.@ They  
provided no documentary evidence in support of any of these assertions. For reasons explained  
below, the Board gives little weight to their evidence on the point. In the second group of witnesses,  
to which the Board gives much greater weight, one finds the evidence of Dr. Eaton, supported by  
that of Ms. Haylock, Mr. Keough, and Mr. Bradley, all of whom assume a farm gate price (as will  
be explored in more detail below) about 20 cents to 25 cents per pound lower (i.e., 50 to 58 cents per  
pound). These persons supported their opinions, in part, by reference to identified third party  
sources, and documentary sources. Moreover, the evidence of the witnesses in the second group is  
that there has never, ever C even in a single year C been an average farm gate price per pound of 75  
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cents (the figure claimed in the Ryle Report, and a price which Mr. Harrison claimed to have  
received).  
[338] The evidence before the Board with respect to the meaning of the term Afarm  
gate price,@ or grower=s price, also falls into two essentially divergent groups. Dr. Eaton, who was  
qualified to give opinion evidence on, among other things, the farm gate values of blueberries,  
defined the farm gate value or farm gate price as the price paid for uncleaned blueberries brought  
from the field, placed in boxes containing 23 to 25 pounds of blueberries, and then weighed at a  
receiving shed, with the weight of the boxes being deducted. The term Afarm gate@ price is not  
applied normally to the price paid by a processor (for example, Bragg Lumber) to a buyer/broker  
delivering berries from a receiving shed to the processor. Mr. Harrison=s testimony about the term  
Acurrent farm gate value@ was consistent with that of Dr. Eaton: he specifically described the Afarm  
gate@ price as being a Agrower price,@ which excluded the broker=s commission paid to a buyer.  
Mr. Keough, in his report, used the term Afield price@ or Ablueberry prices at the field level.@  
[339]  
Even Mr. Sibley himself, who attempted to justify Mr. Ryle=s assertion of a  
75 cent Afarm gate@ price in his testimony, defined, in the course of his own testimony, the Agrower  
price@ as Athe price that the farmer receives for his berries,@ distinguishing that from the brokerage  
fee paid to an operation such as the that of the claimant. In effect, Mr. Sibley told the Board that he  
had decided that what Mr. Ryle really meant when he referred to a 75 cent Afarm gate@ price was a  
65 cent farm gate price, plus a 10 cent brokerage fee. The Board finds that the farm gate price is the  
Agrower price,@ paid to ordinary farmers who do not enjoy the status (as does the claimant) of being  
a broker or buyer.  
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[340] In the view of the Board, the term Afarm gate@ price seemed to be used in a  
variety of ways in the evidence given on behalf of the claimant. In particular, Mr. Ryle used the  
term in ways inconsistent with the preponderance of the evidence.  
[341] The following table contains data on farm gate prices taken from various  
sources in the evidence, with particular reference to the 2000 Situation Report, the 1994 Situation  
Report, and the evidence of Mr. Bradley, Mr. Keough, and Dr. Eaton.  
Farm Gate, or Grower=s Prices  
Year  
Average Price  
Year  
Average Price  
(4/lb)  
(4/lb)  
1956  
1957  
1958  
1959  
1960  
1961  
1962  
1963  
1964  
1965  
1966  
1967  
1968  
1969  
1970  
10.5  
12  
12.5  
10.5  
10  
9
1978  
1979  
1980  
1981  
1982  
1983  
1984  
1985  
1986  
1987  
1988  
1989  
1990  
1991  
1992  
50  
38  
45  
48  
60  
40  
30  
25  
45  
60  
60  
60  
42  
55  
50  
8.5  
12  
15  
24  
16  
7
17  
15  
21  
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Farm Gate, or Grower=s Prices  
Year  
Average Price  
Year  
Average Price  
(4/lb)  
(4/lb)  
1971  
1972  
1973  
1974  
1975  
1976  
1977  
16  
1993  
1994  
1995  
1996  
1997  
1998  
1999  
2000  
2001  
2002  
2003  
35 (254)  
24  
40  
28  
40  
18.5  
26.5  
32  
70  
62.5  
70  
62  
70  
61  
40  
40  
35  
[342] In his report, Mr. Ryle refers to the Acurrent farm gate@ price of Aabout 75  
cents.@ In the Board=s view, given that Mr. Ryle=s report was apparently finalized in January of  
2001, his reference to the Acurrent@ price could be reasonably taken as referring to the 2000 prices.  
The 2000 price was not 75 cents, however, but, at most, 61 cents (according to the information given  
Mr. Bradley and Mr. Keough), and possibly as low as 55 cents. The Board resolves this ambiguity  
in favour of the claimant, and finds the 2000 price was 61 cents. Therefore, if the reference in the  
Ryle Report to the Acurrent farm gate@ price of 75 cents was meant to refer to the year 2000, the  
price stated in the report should have been to, at most, 61 cents. If Mr. Ryle, in writing his report in  
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January of 2001, and using the term Acurrent@ was referring not to the 2000, but the 1999 price, this  
was 70 cents C the highest figure which appears anywhere in the table reproduced above.  
[343] Assuming a Acurrent@ (in the context of the 2001 Ryle Report) farm gate  
price of 61 cents, even if one includes the brokerage fee, which is not part of the farm gate price, and  
further assumes the brokerage fee claimed by Mr. Ryle and Mr. Harrison as being an average of 10  
cents per pound (a claim which the Board views with some skepticism for reasons discussed  
elsewhere, the total price payable to the claimant in 2000, including both the farm gate (grower=s)  
price and the brokerage fee, would be 71 cents (61 + 10).  
[344] Mr. Harrison was questioned about the Acurrent farm gate value@ referred to  
at page 3 of the Ryle Report of 75 cents per pound, and agreed that he had discussed this with Mr.  
Ryle. Mr. Harrison stated,  
The 75 cents would be the farm gate price or the grower price. That=s not including our  
commission price in that.  
[345] On cross-examination, and then redirect, he insisted that the grower=s price,  
at least paid to him, has in the past reached 75 cents per pound, or even more (claiming a total price  
of 85 cents per pound in 1998 or 1999). On this point, the Board notes that all of the evidence  
indicates that the average price per pound paid for blueberries in 1998 and 1999 was 70 cents. Mr.  
Harrison agreed on cross-examination that the 2000 Situation Report, the veracity of which was not  
challenged, shows no instance at all in which an average price per pound of 75 cents has ever been  
paid.  
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[346] On cross-examination, Mr. Ryle acknowledged that the farm gate price had  
never reached the 75 cents per pound figure which he used in his report.  
[347] From the perspective of the Board, Mr. Ryle=s answers to some of the  
questions directed to him about the meaning of Afarm gate@ price could be seen as taking on the  
form of attempting to redefine the term, at least as it applied to Mr. Harrison. Mr. Ryle claimed at  
one point in his oral evidence that the term Afarm gate@ price, as he had applied to Mr. Harrison,  
was AMr. Harrison=s price by the time he added all his commissions in,@ i.e., he was saying that the  
Afarm gate price@ for Mr. Harrison is the farm gate price (or grower price), together with Mr.  
Harrison=s broker=s commission. In short, Mr. Ryle was saying that, as he had used the term in his  
report, the Afarm gate@ price for Mr. Harrison was the same as what the Agrower=s@ price would be  
for anybody else.  
[348] For at least a few moments in his testimony, Mr. Ryle went further still,  
saying that, if Mr. Harrison began to engage in the production of fresh consumer packs, or freezer  
packs (i.e., engaging in various forms of processing) thereby creating what Mr. Ryle referred to as  
Aadded value,@ Mr. Ryle would then regard him as receiving what Mr. Ryle chose to call Aa net  
farm gate value@ which would not only be higher than the grower=s price, but which would be even  
higher than the buyer=s/broker=s price. Mr. Ryle was thus asserting that, for his client, the term  
Afarm gate@ could mean not just the grower price, but also the commission or fee paid to a broker or  
buyer, and also the additional price accruing from processing the product to the point of packing it in  
consumer-sized containers, and freezing it.  
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[349] The Board considers that the preponderance of the evidence before the Board  
in the present proceeding is inconsistent with the variety of definitions which Mr. Ryle chose to give  
to the term Afarm gate@ price as it might apply to his client. The Board gives his evidence on the  
point little weight. It adopts the definition of farm gate value or grower=s price as put forward by  
Dr. Eaton, which it sees as consistent with the preponderance of the evidence.  
[350] What price should the Board adopt as a reasonable Afarm gate@ price, for the  
purposes of this proceeding?  
[351] Dr. Eaton=s Report characterized the Ryle Report=s statement of a current  
farm gate price per pound in Nova Scotia of 75 cents as being Ainflated compared to the farm gate  
values published for Nova Scotia,@ making specific reference to those prices, and estimating that the  
average price for blueberries during the 1990's was around 53 cents per pound over the decade.  
[352] The farm gate price of 75 cents per pound, which was, initially at least, urged  
on behalf of the claimant, and which is at least implicit in the Ryle Report, and explicit in Mr.  
Harrison= oral testimony, is, in the view of the Board, inconsistent with the preponderance of the  
evidence before the Board. It is, in fact higher than any average price per pound that has ever been  
paid in any year.  
[353] There is evidence that as prices rise, production rises, and ultimately prices do  
fall, following a generally recognized price cycle referred to by both Dr. Eaton and Mr. Keough. Dr.  
Eaton described a price cycle for blueberries which he said historically runs over a period of almost  
10 years, with prices rising gradually, then dropping and levelling off and beginning an upward  
climb once again. Dr. Eaton testified that there had been a general upward trend in prices within  
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these cycles since the mid-1950's, noting that the lowest price in the present cycle was in 1993 at 35  
cents a pound, an earlier low, for example, being in 1985 at 25 cents a pound. Similarly, Mr.  
Keough=s report refers to a belief in the industry that there is a blueberry pricing cycle, during  
which Aa full set of commodity price swings@ occurs, and that this cycle is about seven to eight  
years.  
[354] That more and more fields are being developed for blueberry production is  
demonstrated by the fact that the 1994 Situation Report shows 28,000 acres in production, while the  
2000 Situation Report, just years later, shows 33,000 acres, representing an increase over the 1994  
Situation Report of about 18% in total acreage of developed blueberry lands in Nova Scotia. Private  
and public organizations are endeavouring to create new markets for blueberries, in places where  
they have been either completely unknown, or not widely used, including Japan and Germany. The  
1994 Situation Report, in which Mr. Sibley himself participated, points to both the opportunities and  
challenges inherent in marketing Nova Scotia blueberries internationally, sometimes in markets  
which have not previously purchased blueberries (whether grown in Nova Scotia or elsewhere) at  
all:  
There is a continuing job to be done in selling blueberries in new market areas to cope with  
the rapid production increases which have occurred in both the highbush and lowbush  
industries in recent years.  
This same sentence appears again in the 2000 Situation Report.  
[355] Further, there has been some concern about the possibility of increased  
production occurring at the same time as buyer resistance to higher prices for wild blueberries (i.e.,  
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the type grown by the claimant), including in some of the new markets such as Germany. Both these  
factors (increased supply, and buyer resistance) can lead to reduced prices. The Keogh Report,  
prepared on behalf of the claimant, notes that:  
Over the last 8 year cycle, field prices averaged 56.7 cents per lb. However, there is some  
concern that the high field prices which persisted over the latter part of the 1990's are not  
sustainable and that over the longer term an average of 50 cents per pound is more realistic.  
[emphasis added]  
Lowbush, or wild, blueberries (the type grown by the claimant), face competition from other  
berries, including high bush blueberries. The Athol Report cites the 1998 Blueberry  
Situation Report at Appendix 6, noting in a page entitled APrices to Growers@ that the price  
paid to growers was 35 cents in 1993 (the previous year being 50 cents and the succeeding  
year, 40 cents), saying that the price Adropped dramatically due to an inventory carryover,  
increased competition from high bush blueberries, and a general down turn in the  
economy.@  
[356] The Board also concludes that blueberry prices, like many other agricultural  
commodities, can be quite volatile C for example, prices were 60 cents per pound in 1982, but 25  
cents per pound in 1985; 60 cents per pound in 1988, but 42 cents per pound in 1990; 35 cents per  
pound in 1993, but 70 cents per pound in 1999; and down to 40 cents per pound (or less) in 2001 and  
2002.  
[357] In 1995, the year of expropriation of the subject property, the average farm  
gate price was 40 cents per pound.  
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[358] Turning to the Bradley report, the average price per pound for blueberries  
from 1996 to 2002 (i.e., the years just after the expropriation in 1995) is shown as 58 cents; from  
1992 to 1995 (the years leading up to the expropriation) as 42 cents; for the decade from 1992 to  
2002, 52 cents, and for 1986 to 1995, the 10 year period preceding the expropriation, 49 cents. Mr.  
Bradley ultimately adopted 52 cents per pound (the average for the 11-year period 1992 to 2002) to  
use in his tables; he assumed a Apremium@ or brokerage fee of 10 cents per pound (the figure  
claimed in the Ryle Report) would be added on to that figure, yielding a price to the claimant of 62  
cents per pound.  
[359] Graham Wood of Bragg Lumber, relied on as a source by both Mr. Bradley  
and Mr. Keough, is quoted in the Eaton Report as saying that the farm gate prices have steadily  
declined since 1999 and were expected to be below 40 cents per pound for 2002.  
[360] The Athol Report shows average prices for blueberries from 1956 to 1998,  
with a 55 cent average for the five years from 1994 through 1998.  
[361] Dr. Eaton=s report suggests that the average price for blueberries in the 1990's  
was around 53 cents per pound.  
[362] In oral and written closing submissions by the claimant, claimant=s counsel  
urged that the Board adopt a farm gate price of 65 cents plus a 10 cent brokerage fee (for a total of  
75 cents, as the Abuyer=s price@) as the applicable price. Claimant=s counsel referred to this as a  
not Aunreasonable extension of the historic trends, given where the industry was and where the  
industry is going,@ and as Awhat=s likely to come in the industry.@ Mr. Sibley in his evidence  
supported a figure of this magnitude.  
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[363] It seemed to the Board at certain points in the proceedings that it was being  
argued, whether implicitly or explicitly, by counsel for the claimant that Mr. Sibley had some special  
qualification enabling him to predict future blueberry prices. Counsel for the claimant challenged  
Dr. Eaton about his capabilities in this regard, suggesting to Dr. Eaton that he had not been qualified  
to predict future prices; Dr. Eaton replied that he thought no one was thus qualified. Mr. Sibley  
acknowledged on cross examination that he could not tell counsel for the respondent Crown the  
prices that would be paid to blueberry growers in the coming years. He also acknowledged that he  
had not reviewed any particular studies on long term prices for blueberries, and that he had no  
particular qualifications in financial or economic forecasts.  
[364] Having considered all of the evidence, the Board finds that, on the balance of  
probabilities, it prefers the evidence of Mr. Bradley, Mr. Keough and Dr. Eaton, each of whom  
referred to actual price data for blueberries, over a range of years, and who took a measured  
approach in attempting to identify relevant time periods and price cycles, in reaching their  
conclusions as to a reasonable grower=s price to be relied on in this proceeding. In the view of the  
Board, their approach was quite unlike that of Mr. Ryle, and to a considerable degree, that of Mr.  
Sibley.  
[365] What figure should the Board adopt as the average farm gate price per pound  
relevant for the calculations in this matter?  
[366] In 1995, the year the expropriation which is the subject of this proceeding  
occurred, the price of blueberries was 40 cents per pound. Given the extraordinary volatility and  
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cyclical nature of blueberry pricing, however, 40 cents per pound would not, in the Board=s view,  
be an appropriate price to adopt.  
[367] Given all the information to the contrary, the Board, as noted, gives very little  
weight to the purported Afarm gate@ price of 75 cents stated in the Ryle Report, and repeatedly  
affirmed by Mr. Harrison in his oral evidence. It considers that even the revised farm gate price of  
65 cents per pound later urged in oral evidence by Mr. Ryle, affirmed by Mr. Sibley, and argued by  
counsel for the claimant, in large part reflects the claimant=s view of Awhat=s likely to come@ in  
future for prices, rather than a price which should be applied to calculations relating to an  
expropriation in 1995.  
[368] In one of his schedules, Mr. Bradley adopts a price of 52 cents per pound (the  
average farm gate price for the 11-year period 1992 to 2002); in another schedule, Mr. Bradley  
distinguishes the pre expropriation period of 1992 to 1995 (for which he says there was an average  
farm gate price of 52 cents per pound), and the post expropriation period of 1996 to 2002, for which  
he shows a 58 cent per pound farm gate price.  
[369] Mr. Keough said 56.7 cents is the average price over the eight year period  
ending December 2001, a figure he referred to in his report. Nevertheless, on all the information  
before him (and, in particular, relating to a concern that what he described as the Ahigh@ farm gate  
prices in the latter part of the 1990's were unsustainable), including the history and cycle of  
blueberry prices, adopted 50 cents a pound for his calculations.  
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[370] The opinion attributed to Mr. Woods is that farm gate prices have steadily  
declined since 1999. The Board is also conscious of the concerns about future markets for lowbush  
blueberries, and the possible effects of increased production.  
[371] For his calculations, Mr. Keough used a figure of 50 cents per pound; Mr.  
Bradley ultimately adopting a figure of 52 cents per pound (plus 10 cents for a broker=s fee); Dr.  
Eaton referred to an average price of 53 cents per pound in the 1990's; the Athol Report states an  
average of 55 cents per pound for the five years from 1994 to 1998.  
Finding: Farm Gate Price and Broker=s Price  
[372] Having taken all the evidence into consideration (including the evidence  
before the Board as to there being a cycle of prices, running from seven years to a little less than 10  
years), the Board considers that, on the evidence before it, a reasonable range for the farm gate or  
grower=s price for blueberries could, in the view of the Board, be set, on the balance of  
probabilities, at between 50 cents and 53 cents (or perhaps a little more) per pound.  
[373] The Board considers that, on the evidence before it, the broker=s premium  
could be properly set, on the balance of probabilities, somewhere between 6 cents and 10 cents per  
pound: the Board once again notes, as it has previously, that the evidence in general is that brokers=  
premiums vary over a range, that the maximum which Mr. McIsaac had ever seen was 10 cents per  
pound, and that Mr. Wood stated he had never seen a broker=s premium in excess of 8 cents. Mr.  
Harrison, on the other hand, in parts of his evidence, at least impliedly laid claim to having received  
broker=s premiums of in excess of 10 cents; as noted elsewhere, he also claimed to have at times  
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been paid farm gate prices of 75 cents or more per pound, making it clear in his evidence that he  
understood and was applying the standard distinction between the farm gate price (or grower=s  
price) and the broker=s (or buyer=s price).  
[374] A claim of a broker=s premium of more than 10 cents, or a farm gate price of  
more than 75 cents per pound, is a claim inconsistent with the preponderance of all the evidence  
before the Board (except that of Mr. Harrison and Mr. Ryle). Moreover, the Board does not consider  
that the evidence before it leads it to conclude, on the balance of probabilities, that either Mr.  
Harrison personally, or the corporate claimant, have any special characteristics which would cause  
processors to pay him or it higher prices than they would pay to other buyers/brokers in the  
province. The Board sees the claims of Mr. Ryle and Mr. Harrison with respect to farm gate prices  
paid and the buyer=s/broker=s premium to be inconsistent with the balance of the evidence before  
the Board, and to be another factor which the Board may properly consider in evaluating the  
credibility of their evidence.  
[375] The Board has already noted that the buyer=s price (the sum of the farm gate  
price and the broker=s/buyer=s premium), while higher than the grower=s price (or farm gate price),  
is a price involving additional work, and additional expenditure, beyond that done by a grower.  
[376] In the present proceeding, the Board also notes that, for the purposes of any  
calculation the Board may make which is dependent upon the price of blueberries, the price to be  
used by the Board (given the status of the claimant as a buyer or broker) is the buyer=s/broker=s  
price (the total of the farm gate price and the buyer=s/broker=s premium). Both the appropriate  
price to assume for the farm gate price and the appropriate amount to be set for the broker=s  
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premium are, in the view of the Board, not matters which can, on the evidence before the Board, be  
regarded as lending themselves to precision in calculation. Recognizing the uncertainties in setting  
either the farm gate price or the broker=s premium, the Board has, after considerable reflection,  
determined that the most reasonable way to deal with both issues (having outlined the range of  
prices which the Board considers to have been reasonable for both items), is to set the buyer=s price,  
rather than to set its components (being the farm gate price and broker/buyer premium). The Board  
sets the buyer=s price (being the total of the farm gate or grower=s price, and the broker/buyer=s  
commission) at 60 cents per pound, and deems this to be the applicable price per pound for  
blueberries for the claimant for the purposes of this proceeding. In the event that it should be held  
that the Board was mistaken in this approach, the Board finds the farm gate price which should  
apply to be 52 cents (rather than the 75 cents claimed in the Ryle Report, and the 65 cents referred to  
in the claimant=s closing submissions) and the buyer=s/broker=s premium to be 8 cents (rather than  
the 10 cents asserted in the claimant=s evidence).  
!
The Board sets the total price per pound for blueberries, for purposes of the present  
proceeding, at 60 cents.  
XI  
VALUE OF LAND PER ACRE  
[377] The Board received evidence with respect to the appropriate market value  
prices to be attributed to the three main kinds of land involved in this proceeding, being developed  
blueberry lands, lands with blueberry potential, and undeveloped woodland. This evidence was  
received from several different witnesses, including Mr. Omond, the only qualified appraiser to  
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testify, as well as from Mr. Ryle. The evidence of Mr. Keough, who was not qualified to provide  
opinion evidence with respect to value, also contained references to assumed prices per acre which  
he had obtained from other sources.  
Fergus T. Omond Appraisal  
[378] In forming his opinion, Mr. Omond relied on sales in Cumberland County (the  
County in which the subject property is located) contained in the following table:  
Comparable Land Sales  
Sale  
No.  
Date  
Location  
Sale  
Price  
Size  
Sale Price  
per ha. /  
per ac.  
Remarks  
1
Diligent River,  
Parrsboro area,  
Cumberland County  
$62,000  
$27,000  
10.12 ha.  
25 ac.  
$6,126/ha.  
$2,450/ac.  
-
-
Level blueberry land with direct  
road access and suitable for  
mechanical pickers.  
1987  
2
Route 301, Kolbec,  
Cumberland County  
Blueberry  
Wooded  
3.23 ha.  
8.0 ac.  
$7,337/ha.  
$2,963/ac.  
Average quality blueberry  
lands subsequently upgraded  
to permit mechanical pickers.  
Uncleared woodland  
Located two miles north of  
Oxford.  
1992  
4.45 ha.  
11.0 ac.  
$742/ha.  
$300/ac.  
-
-
3
Cannan Mountains,  
Cumberland County  
$175,000  
$32,000  
Blueberry  
Pot. Blue.  
22.26 ha.  
55 ac.  
62.73 ha.  
155 ac.  
40.47 ha.  
100 ac.  
$4,750/ha.  
$1,923/ac.  
$865/ha.  
$350/ac.  
$370/ha.  
$150/ac.  
-
-
-
Machinable blueberry lands  
with direct road frontage.  
Land said to have good  
blueberry potential.  
1992  
Mixed  
Wooded  
Mixed woodland.  
4
Travis Road,  
Hastings,  
Cumberland County  
125.45 ha.  
310 ac.  
$255/ha.  
$103/ac.  
-
Vacant forestry or woodlands  
located off the end of the  
Travis Road, southwest of  
Amherst.  
1988  
5
Hunter Road,  
Middleford,  
Cumberland County  
$35,000  
$13,000  
64.75 ha.  
160 ac.  
$540/ha.  
$218/ac.  
-
-
-
-
Located just north of Lower  
Wentworth off Route 368.  
Mixed forestry or woodland.  
1987  
6
Highway 34, Rockley,  
Cumberland County  
16.19 ha.  
40 ac.  
$803/ha.  
$325/ac  
Unimproved forestry or  
woodland.  
Located between Port Philip  
and Roslin  
1989  
7
Roslin, Cumberland  
County  
$14,000  
13.35 ha.  
33 ac.  
$1,049/ha.  
$424/ac.  
-
Included 50% forestry or  
woodland and 50% cleared  
land.  
1989  
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Sale  
No.  
Date  
Location  
Sale  
Price  
Size  
Sale Price  
per ha. /  
per ac.  
Remarks  
-
-
-
Located off Route 321 between  
River Philip and Oxford.  
8
Chapman Settlement,  
Cumberland Co.  
$45,500  
165 ac.  
$276  
$250  
Average to good quality  
woodland.  
Jun 88  
9
Various locations  
throughout  
Cumberland Co.  
$18  
million  
72,000 ac.  
Included 142" separate  
parcels of land with varying  
degrees and quality of wood  
resource.  
Feb 89  
10  
Mar 89  
Various locations  
throughout  
Cumberland Co.  
$560,000  
1,180 ac.  
$475  
-
Included 10 separate sites or  
parcels, most of which were  
north of Parrsboro, with varying  
degrees and quality of wood  
resource.  
11  
Nov 93  
Hwy. 368, Wentworth,  
Cumberland Co.  
$56,000  
$28,000  
280 ac.  
142 ac.  
$200  
$197  
-
-
-
Mixed matured and immature  
woodland  
No recent cuttings  
12  
Nov 93  
Wallace Station,  
Cumberland Co.  
Matured woodland with no  
road frontage  
[379] Mr. Omond considered that the highest and best use, within a reasonable time  
period, for the bulk of Westchester II East was as a woodlot. In his revised report, Mr. Omond  
assumed there were 70 acres of woodland with no immediate or short term potential beyond forestry  
use in Westchester II to the west of the West Branch of the Wallace River, and 656 acres of  
woodland with no immediate or short-term potential beyond forestry use to the east of the West  
Branch of the Wallace River. For such property, Mr. Omond determined a value of $400 per acre  
west of the West Branch of the Wallace River, and $350 per acre to the east of it.  
[380] Mr. Omond testified that, while he had inadvertently cut Mr. Harrison's  
claimed yield in half, he would still have reached the same conclusion with respect to the highest  
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and best use, had he been aware of and accepted the claimed Harrison yield figures, which were  
twice as high:  
I would still feel, in my best judgement, that a reasonable person would have only paid the  
$350 an acre for those back lands, irrespective of the tonnage or the pounds per acre or  
production per acre. I just didn't think at the time that it would be reasonable to put all of  
those lands into production in the immediate to short term.  
[381] For lands with blueberry potential, but which had not yet been developed, his  
opinion was a value of $900 per acre should apply.  
[382] For developed blueberry lands, he set a value of $2,500 per acre. In  
connection with the latter value, the Board notes that his Sale No. 1 shows a 1987 transaction in  
which blueberry land suitable for mechanical pickers was sold for $2,450 per acre; a 1992 sale in  
which blueberry land subsequently upgraded to permit mechanical pickers was sold for $2,963 per  
acre, and a 1992 sale in which machinable blueberry lands with direct road frontage were sold for  
$1,923 per acre.  
[383] With respect to any timber on the subject lands, Mr. Omond=s opinion was  
that the value of the timber was included in the market values which he stated, e.g., $400 per acre for  
a woodlot, or $900 per acre for a property with blueberry potential. These were prices which, in his  
opinion, a buyer would be likely to pay for such land, having regard to, among other things,  
whatever wood resource stood upon it.  
[384] While there are sales in the table involving property with blueberry potential,  
no sale in the table consists exclusively of property with blueberry potential. When asked how he  
arrived at a figure of $900 per acre for a market value for property with blueberry potential, Mr.  
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Omond said that this was based upon Sale #3 in the table. In Sale No. 3, he said the woodland had  
an assigned value of $350 per acre. He assumed a value of blueberry land which was in production  
of $2,500 and then, from information which he had gathered, assumed a range of anywhere from  
$900 per acre to $1,800 per acre to develop such woodland into producing blueberry land,  
concluding that $900 per acre fairly reflected in Sale No. 3 the market value of land with blueberry  
potential. He said there was Ano exact or precise@ piece of information upon which he could rely  
for his choice of a particular number within the range of $900 to $1,800 per acre as the cost of  
development. Taking into account the information before him, he had ultimately formed the opinion  
that $900 per acre was a reasonable figure for the market value of land with blueberry potential.  
[385] In Mr. Omond=s opinion, developed blueberry lands should be valued at  
$2,500 per acre as of the date of expropriation. Sale No. 1 (in 1987) was for $2,480 per acre, with  
direct road access and was suitable for mechanical picking; Sale No. 2 (in 1992) was for $2,963 per  
acre, and included 8 acres of blueberry land which was subsequently upgraded for mechanical  
picking; Sale No. 3 (in 1992) was for $1,923 per acre, and included machinable blueberry lands with  
direct road frontage. All of these sales were in various places in Cumberland County. Relying on  
these sales in particular, Mr. Omond formed the opinion that a price per acre for developed  
blueberry land of $2,500 should apply.  
Keough Evidence Re Value of Land Per Acre  
[386] While Mr. Keough was careful to disclaim any expertise with respect to  
blueberry operations (and was not qualified with respect to opinion evidence of valuation of real  
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property in relation to blueberry land), Mr. Keough=s report used a price per acre for lands with  
blueberry potential of $1,000, a figure which he said he obtained from Farm Credit Canada for  
undeveloped or barely developed pieces of land with Ablueberry attributes.@  
[387] Mr. Keough said that information supplied to him indicated that, in the early  
1980's, the introduction of new technology, such as mechanical harvesting and the use of herbicides  
to reduce the growth of undesired weeds, grass, and trees, led to an increase in the value of blueberry  
properties over the 1971 to 1986 period. As of December 2002, Mr. Keough suggested that the price  
per acre for producing blueberry lands:  
. . . may be at a cyclical low point due to low field prices [which the Board interprets as low  
farm gate prices per pound] in 2002, and a cash flow problems this can create, particularly for  
farmers carrying debt loads. As recently as three to four years ago it is believed that  
blueberry acreage was trading at a premium, possibly due [to] the tremendous cash returns  
available when yields were high and prices were high as well.  
In his oral evidence, Mr. Keough also said that Mr. McIsaac had told him that, when prices  
had been Apeaking,@ there were Ainstances@ in which prices of $4,000 to $5,000 per acre  
were paid, and that even in some instances at the top of the cycle, $5,000 to $6,000 per  
acre Amight@ be paid. Mr. Keough=s report notes that, Aanecdotally,@ it seems producing  
blueberry fields fluctuate in value depending upon profitability in the industry and other  
related factors. There was some indication in Mr. Keough=s evidence, as well, that the  
McIsaac pricing information related to an assumption of a yield of 2,500 pounds per acre.  
[388] Mr. Keough obtained information from Farm Credit Canada showing  
valuations for developed blueberry lands for the two years previous to his retainer in December of  
2002. For Cumberland County cultivated blueberry land, the average price per acre on that database  
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was $2,314 per acre, for seven sales (which apparently ranged from $1,000 per acre for an  
undeveloped or barely developed parcel of land up to $4,000 per acre for parcel which was machine  
harvestable and mature). Mr. Keough said his review of the information available led him to  
conclude $3,000 per acre was a figure that seemed to be Ain wide use,@ and this was the figure  
which Mr. Keough adopted for purposes of his calculations.  
Bradley Evidence Re Value of Land Per Acre  
[389] Like Mr. Keough, Mr. Bradley was not qualified to give opinion evidence on  
real property valuation in relation to blueberry lands. In his notes of his interview with Mr. McIsaac,  
Mr. Bradley reviews Mr. McIsaac=s comments about the costs per acre to clear timber and develop  
blueberry lands. The notes refer to buying already developed land as an alternative to developing  
land from forest, in which instance, according to Mr. Bradley=s notes, Mr. McIsaac suggested that  
one could Apay $2,500 for already developed land@ instead of developing land from timber.  
Mr. Harrison Evidence Re Value of Land Per Acre  
[390] Mr. Harrison testified that, in his dealings with Farm Credit Corporation in  
1995, the year of the expropriation, a value for his developed blueberry lands ranging between  
$2,500 and $3,000 per acre was the figure that was used and accepted by Farm Credit Corporation.  
No other evidence is before the Board as to the market value used by the corporation.  
Finding  
[391] While Mr. Keough is also unqualified as an appraiser, and has had no prior  
experience in the blueberry business, he did supply the Board with information on comparable sales  
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which he had obtained from Farm Credit Canada for the purposes of his discount calculations. This  
information had led him to adopt a price per acre for lands with blueberry potential at $1,000, a  
figure which the Board sees as consistent with the $900 per acre price for land with blueberry  
potential deduced by Mr. Omond.  
[392] While, as noted, Mr. Omond=s figure of $900 per acre was deduced from data  
relating to mixed sales, his deduction was nevertheless supported by reference to comparables. Mr.  
Omond is the only qualified appraiser to have testified before the Board, or to have provided a  
written report for the Board. The simple fact that a person is an AACI does not, of course,  
necessarily mean that their opinion on a particular point will automatically be accepted; in the view  
of the Board, the opinions of an expert should always be carefully evaluated in the context of the  
circumstances of an particular case: see Theresa MacIsaac v. Antigonish (County), [2004]  
N.S.U.R.B.D. No. 17 (Q.L), 2004 NSUARB 18 [para. 100]. Nevertheless, the Board does note that  
the Expropriation Act confers a special significance upon the Appraisal Institute of Canada=s  
standards with respect to reports. Under the Expropriation Act, an Aappraisal report@ is specifically  
defined as a report which meets the requirements and standards adopted by the Appraisal Institute of  
Canada: s. 3(1)(a). Any offer of compensation by an expropriating authority must be based upon  
such a report: s. 13(2) and (3). Further, an offer to settle (pursuant to s. 13(2) of the Expropriation  
Act) must be based upon such an appraisal report: s. 13(3). Moreover, s. 52, which refers to an offer  
to settle (meaning a written offer of compensation made at least 14 days before a Board hearing to  
determine compensation) Amay include, but . . . is not limited to@ an amended appraisal report.  
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[393] Mr. Omond included comparables in his report; neither Mr. Ryle in his report  
or oral evidence, nor Mr. Sibley (who provided oral evidence only) provided actual comparables.  
The Board prefers Mr. Omond=s opinion. The Board finds, on the balance of probabilities, that the  
price per acre for land with blueberry potential is $900.  
[394] With respect to the value of developed blueberry lands, Mr. Omond set a  
value of $2,500 per acre. Mr. Sibley and Mr. Ryle assert a value of $3,000 per acre, but again  
provide no comparables. In Johnson, in which, as noted, Mr. Ryle testified, the Board adopted  
$3,000 per acre. Mr. Keough reviewed the information available to him from various sources  
(including Mr. McIsaac) about the price of such land, eventually coming up with a figure of $3,000  
per acre. While Mr. Keough chose to adopt $3,000 per acre as a figure which he understood to be  
Ain wide use,@ he had been informed by Farm Credit Canada that the average price per acre for  
seven sales of blueberry land in Cumberland County in the two years previous to December 2002  
was $2,314 per acre. Mr. Harrison acknowledged that in his discussions with Farm Credit  
Corporation, values of between $2,500 and $3,000 were discussed and accepted by Farm Credit.  
[395] The Board considers that the greatest weight should C all other things being  
equal C be given to the evidence of a qualified appraiser, such as Mr. Omond, in determining a value  
of such lands. Mr. Omond said that he had been able to identify only the three relevant sales just  
referred to. He said that he had no evidence to suggest that any of the three sales was inferior or  
superior to the subject property. The Board also notes that, in his evidence, Mr. Omond  
characterized the range of $1,923 per acre to $2,963 per acre as Aa reasonably good indication of  
value.@ He saw his selection of $2,500 as the mid-point value of three sales of developed blueberry  
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land identified in his table (Sale No. 1, at $2,450 per acre; Sale No. 2 at $2,963 per acre; and Sale  
No. 3 at $1,923 per acre, with the first sale occurring in 1987 and the other two in 1992). He did not  
say he averaged values, a practice which has on other occasions been rejected by the Board: see  
Johnson; MacIsaac, and the cases cited therein. On cross-examination, Mr. Omond agreed that he  
had not made time adjustments to the sale prices for 1987 and 1992. In the Board=s experience,  
however, such specific time adjustments are not a uniform, or even ordinary, requirement in such a  
report. Moreover, the Board finds that the evidence does not, on the balance of probabilities,  
indicate that Mr. Omond, in stating his professional opinion as to the value per acre of developed  
blueberry land as of the date of expropriation in December 1995, failed to take into account the sales  
data (including the sale dates) in the information which were available to him, and which he in fact  
had gathered.  
[396] The Board has before it then, Mr. Omond=s appraisal of $2,500 per acre; Mr.  
Ryle=s assertion of a value of $3,000 per acre (supported by Mr. Sibley, and accepted by Mr.  
Keough); Mr. Harrison=s evidence that a figure between $2,500 and $3,000 per acre was discussed  
by him in his discussions with Farm Credit Corporation.  
[397] As indicated previously, Mr. Omond=s evidence is the only evidence from a  
qualified appraiser, and is also the only evidence supported by identified comparables C a point the  
Board considers to be of considerable significance. As well, the Board sees Mr. Omond=s price per  
acre as lying within a range of values indicated by the other figures which have been placed in  
evidence before the Board. The Board sets the market value of developed blueberry land, for the  
purposes of this proceeding, at $2,500 per acre.  
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[398] Mr. Omond set the price of woodland without blueberry potential at $400 per  
acre. Taking into account all of the evidence before the Board, the Board sets the value of woodland  
without blueberry potential at $400 per acre.  
[399] In summary, the Board sets the following values (subject to such factors as  
depreciation for reduced accessibility) for woodland without blueberry potential, woodland with  
blueberry potential, and developed blueberry land:  
!
!
!
The Board sets the market value of woodland without blueberry potential at $400 per  
acre;  
the Board sets the market value of woodland with blueberry potential at $900 per  
acre;  
the Board sets the market value of developed blueberry land at $2,500 per acre.  
[400] These values apply, in the view of the Board, to properties with an ordinary  
degree of access: the Board notes, for example, that the 1992 sale of developed blueberry lands cited  
by Mr. Omond as at $1,923 per acre was of machinable blueberry land with direct road frontage.  
The Board, having set the above three values, will now turn to the question of which parts of the  
subject property these prices should be applied to, and whether in certain instances adjustments  
should be made to these prices (for example, Mr. Omond in his evidence reduced the price of  
woodland without blueberry potential on the east side of the West Branch of the Wallace River from  
his stated $400 per acre to $360 per acre, a reduction of 10%).  
[401] The Board is conscious of the comments of counsel for the respondent Crown  
to the effect that Mr. Omond made no observation with respect to the value of land with blueberry  
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potential on the east side of the West Branch of the Wallace River. Counsel for the respondent  
Crown suggested that the Board might deduce a value itself, apparently by means of determining  
what costs it thinks would apply to the lands east of the West Branch of the Wallace River had the  
expropriation not occurred, deducting this from costs which the Board considered would apply after  
the expropriation, and then applying an appropriate discount figure. As explained elsewhere in this  
decision, in the view of the Board, the data before it with respect to the increased costs which might  
arise from the existence of the government land access roads is not sufficiently reliable or  
comprehensive for it to carry out this exercise and thereby determine useful results.  
[402] Mr. Omond did not discount the value of lands with blueberry potential to the  
east of the West Branch of the Wallace River (because of the crossing), but only lands without such  
potential. With respect to the latter, he applied a percentage (initially 10%, and thereafter 15%) to  
the lands to the east of the right-of-way, and west of the river, reducing their value as woodland with  
blueberry potential to reflect, the Board finds, all forms of loss created by the right-of-way which  
severed Westchester II East, and the government land access roads making the round trip from  
Westchester Road to the lands east of the right-of-way. Moreover, Mr. Ryle was emphatic in his  
view that the difficulties which he attributed to the government land access roads led to a reduction  
in the value of lands.  
[403] In summary, Mr. Omond reduced the value of woodland without blueberry  
potential to the east of the West Branch of the Wallace River, because of the difficulty in crossing  
the river, by 10%, from $400 to $360 per acre. He did not reduce the value of woodland with  
blueberry potential to the east of the river, as, in his view, the highest and best use of land to the east  
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of the river was simply as woodland. Taking into account all of the evidence, the Board sets the  
value of woodland without blueberry potential to the east of the West Branch of the Wallace River at  
$360 ($400 x 90%). The Board sets the market value of woodland with blueberry potential on the  
east side of the West Branch of the Wallace River at $360. These two values ($360 for woodland  
without blueberry potential, and $810 for woodland with blueberry potential) are, the Board finds,  
the applicable values for these lands prior to the right-of-way being cut through.  
Ryle Evidence Re Value of Land Per Acre  
[404] Mr. Ryle gave evidence as to his opinion as to the market value of fully  
developed blueberry lands, woodland with blueberry potential, and woodland without blueberry  
potential. While Mr. Ryle lacks an AACI or other specialized formal qualification with respect to  
land valuation, the Board notes that he has given evidence or provided opinions with respect to the  
valuation of agricultural land C for example, in the Johnson case, and also, according to his  
evidence, with respect to acquisition of property for the Sable Gas Pipeline in northern Nova Scotia.  
In the present proceeding, the Board has given, for reasons outlined below, relatively little weight to  
his opinions of value. In part, this is because of the complete absence of comparables from his  
evidence and the evidence of those upon whom he relied.  
[405] Mr. Ryle asserts a value for land with blueberry potential on an Aincremental  
basis,@ giving a value for blueberry potential, a value for raw land, and a net value for timber which  
could be harvested from that land, and adding the three together to get what he asserts should be the  
compensation per acre. He also referred to his incremental method as involving Alayers of value@  
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(as it was referred to in at least one point in the evidence) in a property. As already noted, Mr.  
Ryle=s report does not contain any reference to specific comparables, nor did his oral evidence.  
[406] Given the Board=s view of the evidence on market value (i.e., that it prefers  
the evidence of Mr. Omond, and gives much less weight to that of Mr. Ryle), the Board will not  
attempt to explore the Ryle incremental value hypothesis in the degree of detail which would  
perhaps be proportionate to the time used for its exploration, or for matters related to it, during the  
hearing. Nevertheless, the Board will, as a matter of completeness and, hopefully, clarity with  
respect to the Board=s view of the evidence, review some of the points asserted by Mr. Ryle.  
[407] The numbers used by Mr. Ryle in relation to this calculation varied in ways  
which the Board sometimes found not entirely consistent, but the following example illustrates his  
basic approach. Starting with what he called a Abare land value@ of $100 per acre, he added $900  
per acre for blueberry potential. As the Board has noted, there are some variations in his  
calculations. Counsel for the claimant in his closing submissions suggests that Mr. Ryle=s total  
value on the incremental approach for property expropriated was $1,777 per acre. On the other  
hand, Mr. Ryle=s figure for lands within the claimed salt spray protection zone was $1,555 per acre  
[100 - (900 x 0.85, the adjustment Mr. Ryle makes for the Sibley percentages) + $690 for timber].  
The Board also notes, that, at another point in his evidence, Mr. Ryle asserted that the price of land  
with blueberry potential was $2,000 per acre.  
[408] With respect to his $900 Aincremental@ value for blueberry potential, Mr.  
Ryle specifically stated in his oral examination that he had adopted this figure from the Omond  
Report. To this, he added $900 per acre for blueberry potential (at other points in his evidence, Mr.  
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Ryle asserted different values, for example, referring at page 3 of his report to a Apremium@ of  
$1,000 or more per acre@ for lands with sufficient blueberry potential Ato allow rapid  
development@). To the figure of $900 per acre, Mr. Ryle then added in a claimed net profit of $690  
per acre for wood fibre of $690 per acre for wood fibre (i.e., the profit Mr. Ryle claimed could be  
obtained by removing timber from the site) which would, in the example just given, yield a price per  
acre for land with blueberry potential of $1,690 per acre (100 + 900 + 690). While he attributed the  
$900 incremental value for blueberry potential to Mr. Omond, at other points in his evidence, he  
asserted different values: for example, at page 3 of his report, he referred to a Apremium of $1,000  
or more per acre@ for lands with sufficient blueberry potential Ato allow rapid development.@  
[409] Mr. Ryle, at times in his testimony (such as that referred to in the paragraph  
above), put forward an interpretation of the Omond Report as asserting an Aincremental value@ at  
$900 per acre. At other times in his testimony, he (correctly, in the Board=s view) acknowledged  
Mr. Omond=s evidence as asserting a total price of $900 per acre for a fee simple interest in lands  
with blueberry potential. As an example of the first type of interpretation, Mr. Ryle=s report says  
the Omond Report set a Abase value@ for land with blueberry potential of $900 per acre, Mr. Ryle  
asserting that:  
. . . the $900 is an incremental amount to the basic land value. The latter was set at $ 750  
per acre in a DOT appraisal of a nearby property and is considered acceptable. [emphasis  
added]  
The Board for the moment will ignore the non-italicized portion of the above quotation  
(which is discussed further later in this decision). Mr. Ryle=s statement, Athe $900 is an  
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incremental amount to the basic land value,@ amounts to, in effect, his arguing that Mr.  
Omond=s value of $900 per acre was simply an Aincremental@ value for blueberry  
potential, to which should be added the value of the land itself, and the value of wood upon  
it.  
[410] In his testimony, Mr. Ryle, referring to the $900 Aincremental amount,@ said  
that he regarded this figure as Aa little bit conservative . . . but the intention was to accept as many of  
these values as we could to avoid the cost of a new appraisal.@  
[411] In cross-examination, Mr. Ryle agreed that Mr. Omond=s appraisal report  
never referred to the $900 per acre as a Abase value,@ but that this terminology was in fact Mr.  
Ryle=s interpretation of what Mr. Omond had done. Mr. Ryle attempted to justify his interpretation  
by, referring, at least in part, to the following item appearing at page 35 of the Omond Report:  
14.1  
Market Value- of Expropriated Lands  
9.687 acres (3.922 ha.) of woodland with immediate to  
short term potential for blueberry use subject to  
clearing and preparation @ $900/ac  
[emphasis added]  
$8,718  
In his written and oral evidence, Mr. Ryle asserted that, in his view, it was Aa reasonable  
assumption@ that the phrase Asubject to clearing@ meant that Mr. Omond was talking about  
a market value which was Aabsent the wood fibre.@  
[412] The Board does not agree that this is a reasonable interpretation of Mr.  
Omond=s evidence, taken as a whole. In the Board=s judgment, the evidence of Mr. Omond was  
that the market values which he expressed for particular types of property (such as property with  
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potential for blueberry development) were all inclusive. To put it another way, using the example of  
land with the potential for blueberry development, Mr. Omond=s figure of $900 per acre was his  
opinion as to the expected total sale price for a property with the potential for blueberry  
development. He did not add on to this figure an additional sum for net revenue which might be  
expected from wood that the owner could have harvested from the property had the owner not sold  
the property. In Mr. Omond=s view, an acre of woodland without blueberry potential was generally  
worth $400 per acre, and an acre with potential for blueberry development was worth $900 per acre.  
These were the prices he considered a buyer would pay for such property, i.e., he did not consider  
that there would be any additional Alayers@ of value which should thereafter be applied to the  
market prices per acre of $400 or $900.  
[413] At certain points in his evidence, Mr. Ryle adjusted this Aincremental@ $900  
per acre figure downward, using figures he attributed to Mr. Sibley=s evaluation of the blueberry  
potential of the land, which Mr. Ryle said was the mean of a Arange of potential@ of Mr. Sibley=s  
assessment of the Aproportion of potential blueberry land@ in a particular area. For example, in  
exploring losses associated with the area claimed by Mr. Ryle for protection strips against salt spray,  
he applied Mr. Sibley=s figure of 85% to $900 per acre, leading to a figure of $765 per acre.  
Nothing in Mr. Ryle=s evidence, nor in Mr. Sibley=s, pointed to any empirical support for such an  
application of these percentages to a figure of $900 per acre.  
[414] As a further illustration of some of the adjustments which Mr. Ryle  
used in implementing his incremental approach, the Board notes the words Athe latter was  
set at 750,@ in the passage already quoted:  
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. . . the $900 is an incremental amount to the basic land value. The latter was set at $ 750  
per acre in a DOT appraisal of a nearby property and is considered acceptable. [emphasis  
added]  
From the context, it seems that in referring to Athe latter,@ Mr. Ryle is not referring to the  
basic land value (which he says elsewhere is $100), but to the claimed $900 incremental  
amount. He then makes another adjustment in his report, adopting the $750 per acre  
which he said (in the quotation above) was established by a ADOT appraisal of a nearby  
property.@ No such DOT appraisal of any nearby property was incorporated in the Ryle  
Report, in whole or in part, nor was it otherwise identified, or even referred to generally, in  
the Ryle Report, apart from the reference just quoted.  
[415] With respect to his claimed incremental value for wood fibre of $690 per  
acre, Mr. Ryle quoted a stumpage value per acre in 1995 of $206 per acre, a roadside value of  
$1,062 per acre, and then asserted that, given the claimant=s equipment, he could harvest the wood  
fibre relatively inexpensively at 35% of the roadside value. Accordingly, the claimant (according to  
Mr. Ryle) would net 65% of the roadside value of 1,062 per acre, or $690 per acre. The Ryle Report  
contains no costing information whatever in support of his assumption of 35%, but in his oral  
examination, Mr. Ryle attributed the 35% figure to the Athol Report:  
I believe in the Athol report they mention a figure of 35 percent as an appropriate cost . . . I'm  
using that figure. I'm not plucking some figure out of the sky.  
[416] Despite Mr. Ryle=s firm attribution of his 35% figure to the Athol Report,  
that report (written by Patricia Haylock) does not refer to such a 35% figure. Moreover, in her oral  
evidence, Ms. Haylock denied ever telling Mr. Ryle that he could use a figure of 35%, or any other  
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figure. To the contrary, she said that, while she had been asked to assess such costs in the Johnson  
case, and had done so, Mr. Ryle had not asked her to perform such calculations in the present case:  
page 4 of her report, headed AThe Right of Way@ states that:  
Mr. Harrison does his own harvesting in order to generate the capital required to clear the  
land for blueberry production. The amount of his expenses was not known to the author at  
the time of writing this assessment. [emphasis added]  
[417] Thus, while Mr. Ryle denied Aplucking some figure out of the sky@ in coming  
up with his 35% figure, the Board finds that, wherever his 35% figure did come from, it did not  
come from the source to whom he attributed it.  
[418] Mr. Ryle asserted a value of fully developed blueberry land at $3,000 per  
acre. Mr. Ryle provided no direct sales data (i.e., comparables) to support his assertion of $3,000  
per acre, even in relation to property which had in fact been developed into blueberry lands. For  
example, his report, at page 3, merely refers to Athe current market price for developed blueberry  
land of $3,000 or more per acre.@ He provided no oral evidence as to the comparables upon which  
he was basing this opinion C although he did agree with counsel for the claimant that the Omond  
Report=s reference to a transaction in which the sale price was $2,963 per acre gave him Acomfort@  
that Mr. Ryle=s $3,000 per acre figure was correct.  
[419] His oral evidence did indicate that he was relying on two other persons with  
respect to $3,000 being an appropriate price per acre.  
[420] First, Mr. Ryle said he was relying upon Mr. Sibley, with whom he had talked  
about the appropriate price per acre (as had, it seems, Mr. Gervason).  
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[421] Second, Mr. Ryle said he was relying upon George Johnson, one of the  
owners in the Johnson expropriation, with whom Mr. Ryle said he had had Avery many@  
discussions. He told the Board that he regarded Mr. Johnson as very knowledgeable, and that  
. . . having listened to what [Mr. Johnson] had to say and listened to what Jack Sibley has had  
to say, I think $3,000 on the basis of 1995 is . . . a very safe number.  
[422] In short, Mr. Ryle=s testimony was that one basis for the value per acre  
which, on behalf of his client, he urged the Board to adopt in the present expropriation, was that this  
value was consistent with the beliefs of one of his clients in a previous expropriation. The Board  
accords no weight to this part of Mr. Ryle=s evidence.  
[423] While the claimant made no attempt to call Mr. Johnson himself in the present  
proceeding, the claimant did call Mr. Sibley to testify. As the Board has already noted, no written  
report by Mr. Sibley was filed with the Board or provided to the respondent, nor was whatever  
information may have been supplied by him and incorporated into the Ryle Report identified as such  
in the Ryle Report (although, at page 6, of the Ryle report, does refer to the proportion of potential  
blueberry land having been assessed by Mr. Sibley). Counsel for the claimant admitted that nothing  
in Mr. Sibley=s curriculum vitae referred to any expertise in valuing blueberry lands (or indeed  
specifically to the valuation of any kind of land), and he, like Mr. Ryle, lacks professional  
qualifications such as an AACI in relation to valuation. Counsel for the respondent Crown indicated  
that there was no understanding that Mr. Sibley was being called to provide any opinion with respect  
to market value of land. Nevertheless, Mr. Sibley testified that he has discussed the value of  
blueberry lands on Ahundreds of occasions.@ In his evidence, Mr. Sibley suggested that Agood  
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producing land@ in Nova Scotia carries an average price per acre in the range of $2,500 - $6,000 per  
acre; he referred to the latter figure as Athe high exceptions.@ However, Mr. Sibley, like Mr. Ryle,  
supplied no comparables whatever in support of this assertion.  
[424] Despite Mr. Ryle=s reference to, and apparent reliance upon, Mr. Sibley as a  
source with respect to the $3,000 per acre figure for developed blueberry lands which was adopted in  
the Ryle Report, counsel for the claimant said in closing submissions that, Aat the end of the day,@  
the opinion in the Ryle Report as to the propriety of a price of $3,000 per acre was that of Mr. Ryle.  
Counsel for the respondent Crown asserted that Mr. Ryle has Ano particular experience or  
specialization in terms of valuing blueberry land.@ He asserted that in repeating or relying on the  
opinion as to value attributed to Mr. Sibley, Mr. Ryle was simply Aparroting@ someone else=s  
market value (Mr. Sibley), that Mr. Sibley had not filed a report, and that Mr. Sibley in his  
curriculum vitae had not referred to expertise in valuing blueberry land.  
[425] In Saramaga v. Manitoba (Dept.) of Highways) (January 11, 1983),  
(L.B.A.C.) [unreported, cited in Coates and Waque, page 20-48], an owner alleged that certain  
comparable properties were sold at certain prices, but called no evidence of particulars. The tribunal  
gave no weight to the alleged comparables. In the present instance, neither Mr. Ryle nor Mr. Sibley  
referred to even the names or locations of allegedly comparable properties, or of the prices which  
those properties had sold at, much less did they give evidence of any other particulars of those sales.  
They simply referred to $3,000 as being reflective of sales in general C of being, the Board was  
assured, Aa very safe number.@ As the Board has already noted, neither Mr. Ryle nor Mr. Sibley is  
an AACI, nor do they enjoy any other designation as an appraiser. Nevertheless, in the view of the  
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Board, a person need not necessarily have a formal professional qualification directly relating to  
appraising, such as an AACI, to be able to give opinion evidence on the topic. That being said,  
however, it is the view of the Board that the evidence from such persons can properly be measured  
against the same basic standards as would apply to a properly qualified appraiser. With respect to  
evidence of comparables, the Board would, as a matter of course, expect to see (as it did in the  
evidence of Mr. Omond) identification of the comparables, or transactions, being relied upon, and at  
least some particulars of them C such as their location, price per acre, etc. While Mr. Sibley claimed  
familiarity with hundreds of transactions, he supplied no comparables in support of a market value  
of $3,000 per acre, and, as already noted, no comparables are identified in the Ryle Report (whether  
attributable to Mr. Sibley or not).  
[426] In his cross-examination, Mr. Ryle justified his use of $3,000 per acre upon a  
basis which, in the view of the Board, pointed more in the direction of his so-called Aincremental  
method@ than it did to actual market values: indeed, Mr. Ryle, at one point, said that the $3,000 per  
acre figure was not Astrictly a market value@ at all:  
Q.  
A.  
. . . Where do you get the $3,000 per acre?  
Well, that's the figure that we've used throughout this. That's the figure that I used  
with the pipeline.  
Q.  
A.  
That's the market value of fully developed blueberry land?  
Yes. I've got to say here that this is not strictly a market value. It's more of an  
economic value to him. And I think when we get on a little bit further in our  
testimony, you'll be able to see that the cash flow from lands once they've come into  
full production are very impressive. [emphasis added]  
[427] At certain points, counsel for the Crown asserted that Mr. Ryle=s approach  
amounted to an attempt to use the value to owner approach. In the view of the Board, the previous  
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passage is consistent with that interpretation, as are other parts of his evidence. For example, as has  
been already discussed, Mr. Ryle=s Aincremental@ method of valuation for lands involves, for  
example, adding an increment for the presence of timber or for the presence of blueberry potential,  
etc. At page 6 of his report, in which Mr. Ryle is valuing the 9.687 acres which was expropriated, he  
states:  
The direct loss from removal of this piece of land can be measured by the value to the owner  
of the wood fibre. The bare stumpage rate would represent a serious understatement of its  
value to the owner since he has a comprehensive line of forestry equipment and would have  
harvested the fibre himself. [emphasis added]  
[428] At page 11 of his report, he states:  
In these circumstances, it was considered that the only appropriate method was to accurately  
evaluate the 'value to owner' was to have an accurate assessment of the specific area . . .  
On this point, the Court of Appeal in Bank of Nova Scotia, Woodlawn Farms Ltd., W.  
Eric Whebby Ltd., Frank Whebby Ltd., Portland Estates Ltd., Morash, Morash,  
Morash and Morash v. Province of Nova Scotia, [1977] N.S.J. No. 539 (Portland  
Estates), concluded that the provisions forming the old ss. 24 and 33 Areplaced and  
superceded the judicial test or concept of value to the owner.@ The Court of Appeal said  
that the concept of value to the owner has been replaced by a Amarket value plus@  
approach. The Court of Appeal has reversed the Board=s findings in cases in which the  
Court of Appeal found that the Board, expressly or impliedly, applied the value to the owner  
approach.  
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[429] If Mr. Ryle had provided, from Mr. Sibley, or from someone else, actual sales  
data which showed sales supporting his incremental valuation hypothesis, the Board might have  
explored this approach further, and possibly given it more weight. As the Board has already noted,  
however, neither Mr. Ryle nor Mr. Sibley provided any evidence of any comparables which  
supported their valuation figures C whether these be the so-called Asafe@ numbers the Board was  
told about, or Mr. Ryle=s Aincremental@ values.  
[430] In the Board=s judgment in the present proceeding, Mr. Ryle=s assertion of a  
$900 incremental value for land with blueberry potential (just as with his assertion of an incremental  
value for timber which could be removed from woodland) is an assertion for which the Board sees  
insufficient evidence, on the balance of probabilities, for it to accept. The Board notes that Mr. Ryle  
had discussions with Arthur Speed, AACI, and that Mr. Speed visited the property. Nevertheless, no  
appraisal from Mr. Speed for the property in question was filed with the Board. Such a report could  
have given the Board the benefit of Mr. Speed=s views on Mr. Ryle=s incremental approach, by  
relating it to comparables for woodland, land with blueberry potential, and fully developed blueberry  
land. In the result, in the present proceeding, the Board gives little weight to Mr. Ryle=s  
Aincremental@ approach to valuation of lands with blueberry potential.  
Claim by Mr. Ryle for ADiminution@ in Value (or AStigma@) of 9 Acres in  
Westchester II West  
[431] Mr. Ryle also suggests that the claimant should receive compensation for  
alleged reduction in value of lands lying outside the boundaries of Mr. Ryle=s claimed salt spray  
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protection strips. Mr. Ryle explicitly asserts that, because Ait is now widely known that there is a  
problem with blueberry culture near the highway,@ the price per acre of the 9 acres of blueberry land  
already in production in Westchester II West has been reduced.  
[432]  
In addition to the alleged reduction of the market value of the nine acres  
arising from their proximity to the highway, Mr. Ryle also appeared to assert that the size and shape  
of the Westchester II West property is such that it would not lend itself as well to modern farming  
practices. This would likewise contribute, he said, to a reduction in market value.  
[433] Mr. Ryle asserted that, while the reduction in market value  
. . . cannot be quantified in an exact way, it is believed to be at least 20 percent.  
Calculating the value of nine acres of developed blueberry land at $3,000 per acre, for a  
total of $27,000, he then calculates the 20% reduction in market value of these lands as  
meaning a loss of $5,400. This claim appears to be separate from the claim for injurious  
affection to those lands included within the 100 metre salt spray protection strips urged by  
Mr. Ryle, which was dealt with earlier in the Board=s decision.  
[434] The Board also notes, in passing, that Mr. Ryle appears to be asserting his  
claimed 20% Adiminution in value@ of the nine acres in Westchester II as a result of salt spray  
without making any assertion with respect to lands on the east side of the right-of-way, which lie  
outside Mr. Ryle=s salt spray protection strip, but still relatively close to the highway. If Mr.  
Ryle=s assertion that proximity to the Cobequid Pass Highway reduces the value of existing  
blueberry lands in Westchester II West were to be valid, it would, one might assume, likewise  
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reduce the value of lands with blueberry potential near the highway in Westchester II East. He made  
no assertion that this was so.  
[435] The Board finds that there is insufficient evidence, on the balance of  
probabilities, for it to conclude that the factors identified by Mr. Ryle caused a reduction in market  
value of 20% in the nine acres of land in question occurred. The Board, in reaching this conclusion,  
relies, in part, on the conclusion which it reached after reviewing Mr. Omond=s evidence with  
respect to a loss in market value because of the proximity of salt spray protection strips to a  
highway: in that review, the Board noted that Mr. Omond had no comparables at all which supported  
his view that there would be a reduction in value of lands within 100 feet of the right-of-way, and  
considered that, while adjustments for which no actual comparables exist may often be appropriate,  
the issue of market value reduction because of proximity to a highway of the Cobequid Pass type is  
one for which the Board considers there should be some objective supporting evidence. In asserting  
a loss in market value of 20%, whether arising from proximity to the highway (albeit outside the  
area of the salt spray protection strips claimed as necessary by Mr. Ryle), or Westchester II West  
being less amenable by reason of its post expropriation shape and size to modern farming  
techniques, Mr. Ryle likewise provided no comparables. The Board discusses the likely amount of  
land available to be developed into blueberry lands between the Westchester Road and the right-of-  
way, as well as the likely shape of that property, later in this decision (see AFAILURE TO  
DEVELOP ADDITIONAL LANDS IN WESTCHESTER SINCE 1995").  
[436] With respect to the type of machinery commonly used in blueberry fields, the  
Board also notes that, in his evidence, Mr. Ryle said that pruning of fields is now often done using a  
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flail mower (rather than burning the fields, as previously). Previously, fairly heavy tractors were  
needed to pull the flail mowers which were in use, but, at least in some instances, these are now  
being replaced by ATV=s which pull lightweight mowers to carry out this work.  
[437] Taking into account the evidence before it, the Board finds, on the balance of  
probabilities, that there is no diminution in value of the blueberry lands in Westchester II West  
because of purported difficulties in manoeuvring machinery within the lands available therein.  
[438] Counsel for the respondent Crown also argued that the claim for diminution of  
value advanced at page 9 of the Ryle Report was statute barred, as a claim for injurious affection not  
made within the one-year period provided for under the Act (s. 31). It was argued on behalf of the  
claimant that knowledge of any diminution in value was an item which could not be attributed to Mr.  
Harrison until the date of Mr. Ryle=s report.  
[439] Given the findings of fact made by the Board in the preceding paragraphs, the  
Board considers that it need make no finding on whether or not this claim was indeed statute barred.  
XII IS SIX YEARS SUFFICIENT TO DEVELOP EACH ACRE OF NEW BLUEBERRY  
LAND?  
[440] Mr. Ryle, in a portion of his report which he had discussed with Mr. Sibley,  
hypothesized that for the first six years, the claimant would clear 25 acres of potential blueberry land  
and 25 acres of woodland in each year; in the 7th through the 16th years, he would clear 25 acres of  
blueberry land each year. In the 17th year and thereafter, he would continue to manage a total of  
400 acres of blueberry lands which he had thereby created. He said that the expropriation and the  
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alleged inability to access the land in the years since had prevented this development program from  
occurring.  
[441] Mr. Ryle=s Report postulates a speed of development (6 years to full  
production for each acre) which was also the subject of dispute in these proceedings.  
Sibley Inspection of Property  
[442] One of the bases of Mr. Ryle=s claimed speed for development was the  
inspection by Mr. Sibley of the property on July 3, 1998. Mr. Sibley had walked through the  
Westchester II East property, with Mr. Sobey and others, on July 3, 1998. Mr. Sibley prepared a  
memorandum to Mr. Ryle on September 29, 1998, in response to a memorandum from Mr. Ryle  
dated September 22, 1998, to which was attached a map. At Mr. Ryle=s suggestion, the property  
was divided into sections identified with the letters D, E, F, G, and H:  
D
E
F
Lying between the expropriated area and the 200 metre contour; approximately 25  
acres  
Lying between the 200 metre contour and the West Branch Wallace river;  
approximately 25 acres  
Lying between the West Branch Wallace river and the 225 metre contour;  
approximately 124 acres  
G
H
Lying above the 225 metre contour; approximately 340 acres  
Lying between the 225 metre contour and the northern and southern boundaries of  
the property approximately 206 acres  
[443] Mr. Sibley also attached percentages to this classification, those percentages  
reflecting Mr. Sibley=s opinion as to, it seemed, the potential for actual existence of blueberry  
plants. While the Board did not consider that the evidence as to just exactly what was intended by  
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Mr. Sibley in relation to this percentage was clear, the exact meaning which should properly be  
given to the percentage does not, given the position the Board has taken on the point in relation to  
this proceeding, have relevance to the level of compensation.  
[444] Mr. Sibley concluded that Parcels E and F, which include the escarpments on  
the west and east side of the West Branch of the Wallace River, were better suited to forestry or  
maple syrup production, because of their steep nature. Parcel H, in his view, was sloped, but still  
manageable for blueberry production. In describing Parcel D, Mr. Sibley said that Ayou really have  
to look for signs of the blueberry rhizome growth,@ as opposed to the obvious cover visible to the  
west of the Cobequid Pass Highway. He said that the area, nevertheless, had blueberry potential,  
although he did not rate it as good a potential as areas without hardwood growth. He said that  
hardwood areas may often out produce other areas once they are eventually in production, but cost  
more to develop. The reason is that hardwood, unlike softwood, is not killed by being cut so that it  
actually presents what is referred to as a Aweed problem@ after initial cutting. Mr. Sibley noted that  
the property not owned by the claimant, but located immediately to the south of the Westchester II  
East property, is in what he described Acomplete blueberry production,@ which he regarded as a  
good indicator of the blueberry potential of Westchester II East.  
[445] Claimant=s counsel placed a good deal of emphasis upon the walk over the  
property on July 3, 1998, together with other briefer visits to the western part of Westchester II,  
which were made by Mr. Sibley; the claimant contrasted this with the fact that Dr. Eaton had  
penetrated no deeper than 200 feet into the western end of Westchester II East; at times, counsel for  
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the claimant even suggested that Dr. Eaton had never inspected any part of Westchester II East at all.  
[446] It was the evidence of Mr. Harrison and Mr. Ryle that their July 1998 walk  
lasted about five hours; of Mr. Sibley, that it lasted four to five hours; and of Mr. Sobey, that it  
lasted a couple of hours. On this point, as it has already concluded with respect to other points, the  
Board prefers the evidence of Mr. Sobey. Westchester II East, while it has never been surveyed, it  
has been deemed by the Board to contain 725.5 acres. According to the evidence, it is between a  
minimum of about 3 kilometres, to something approaching 5 kilometres, in length and perhaps as  
much as two-thirds of a kilometre in width. There is no road or path running from west to east  
through Westchester II East; indeed, the only evidence before the Board with respect to an access  
road anywhere in Westchester II East are the access road remains at the extreme eastern end of  
Westchester II East, near the Web Mountain Road. Moreover, while portions of the property (such  
as the central part of Westchester II East, which includes a kind of plateau) are, relatively speaking,  
level, other parts are much rougher.  
[447] An extreme example is the gorge of the West Branch of the Wallace River, an  
area which the party, particularly Mr. Sobey, inspected with a view to considering the practicality of  
building a crossing. Mr. Sobey, Mr. Sibley and Mr. Ryle asserted that Mr. Sibley had zigzagged on  
the property to increase the area which he had the opportunity to inspect. The party was  
accompanied by a forest technician, Mr. Speight, whose task was to operate a Global Positioning  
System (GPS) unit, which he used at various points during the walk to determine positions as a  
record of where they had been walking. The track shown for the GPS (H-32) is one which, in  
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essence, travels in a largely straight line until, presumably, the West Branch of the Wallace River, at  
which point, it veers somewhat to the right, and then continues in largely a straight line until,  
presumably, the east end of the Westchester II East property.  
[448] Counsel for the respondent Crown pointed to two issues in relation to this.  
First, he suggested that the GPS readings, showing roughly straight lines, were inconsistent with the  
claimed zigzagging; second, he suggested that the GPS track shown in Exhibit H-32 might not be  
down the centre of the property at all, but closer to the southern, or southeastern boundaries. He  
justified this inference that trees found there (as shown in the forest cover map) were more  
consistent with those described by Mr. Sibley. In this regard, he suggested that the Apicture@ Mr.  
Sibley had gathered of the overall property might have been influenced by, perhaps, travelling closer  
to the southern boundary of the property, rather than through the centre, noting that there appeared to  
be less dense crown closure, permitting more light through the trees, in that area.  
[449] With respect to the alleged inconsistency of the relatively straight GPS tracks  
with the claimed zigzagging, the Board agrees that it is perhaps surprising that, if a good deal of  
crisscrossing of the property was indeed occurring, the GPS points recorded by the technician wound  
up lined up in such a uniform way, rather than being somewhat more erratic. With respect to the  
suggestion that the track taken on the July 1998 visit may not have been down the centre of the  
property at all, but closer to the boundary, the Board agrees that the distribution of vegetation shown  
of the forest cover map might be seen as possibly lending support to such a conclusion. The Board  
notes, however, that the GPS data contains latitude and longitude data which the Crown, had it  
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wished to, could have related to a map on which was overlaid the assumed boundaries of the lands in  
question.  
[450] Mr. Ryle claimed that simply by walking through the property, which was  
acknowledged by both parties as being heavily wooded, he knew that they had walked more or less  
down the middle of the property. The counsel for the respondent Crown suggested that little weight  
should be given to this evidence. The Board considers the ability of most persons to, in a heavily  
wooded, rough area, with a heavy crown of trees, and no established tracks, know with reasonable  
precision where he or she had been in a walk over a property about 5 kilometres in length, and  
assumed to comprise 725.5 acres, would be problematic.  
[451] In evaluating the weight to be given to Mr. Sibley=s evidence with respect to  
his inspection of the property on July 3, 1998, however, the Board also has the evidence of Ms.  
Haylock, an expert called by the claimant, who, in her oral evidence, discussed the nature of the  
forest found in Westchester II East. She did this in relation to what is termed a Aforest cover@ map  
(Exhibit H-53), as well as the detailed breakdown which appeared in her written report showing  
various Astands@ of different types of trees in Westchester II East. In all, she identified perhaps 35  
to 40 different tree stands on the property. All of this information was derived from routine aerial  
photography of the area which includes the Westchester II East property. In his evidence, Mr.  
Sibley had described zigzagging over the property. He testified that the mix of trees to the east of  
the river was Apredominantly more softwood than hardwood,@ and that the mix of trees to the west  
of the river was likewise more softwood than hardwood. On cross-examination, he was asked the  
following question:  
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Q.  
A.  
So if I told you that the property itself, the entire property, was about 90 percent  
hardwood, that would surprise you?  
Yes.  
The numeric data which appears in Ms. Haylock=s report shows Westchester II East as  
being about 90% hardwood and 10% softwood, a ratio confirmed by Ms. Haylock in her oral  
examination. Moreover, Mr. Harrison, in discussions with Mr. Omond in 1996, described  
the property as Apredominantly hardwood.@  
[452] Taking into consideration the evidence before it, the Board prefers Ms.  
Haylock=s evidence with respect to the proportion of hardwood to softwood on the property, and  
finds that Westchester II East is 90% hardwood and 10% softwood. In her oral evidence, Ms.  
Haylock also explored a Aforest cover@ map, which showed Westchester II in two colours, either  
green or yellow. Green shading indicated a crown closure of 80% or more, meaning relatively little  
light would strike the ground in those particular areas. The major part of Westchester II East is  
shaded green.  
[453] On this point, when cross-examined with respect to forest cover maps  
and the meaning of the percentage crown closing, Mr. Sibley said that, while he had seen such maps,  
he was not familiar with them, had not used one to prepare his assessment, did not understand that  
such a map would give an indication of the percentage of crown closure and thereby an indication of  
the amount of light reaching the forest floor, and had not, whether in providing advice to Mr. Ryle or  
in preparing for his own evidence in the proceeding, reviewed the Athol Report prepared by Ms.  
Haylock.  
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[454] Mr. Sibley is a person who has blueberry experience, and observed blueberry  
plants on the portions of the property which he inspected. Both Mr. Sibley and Dr. Eaton noted that  
blueberries are being grown on the neighbouring property just to the south of the western end of  
Westchester II East, as well as in fields along the Webb Mountain Road, a number of which are  
relatively close to the eastern part of Westchester II East property, which is part of the Ryle  
development plan.  
[455] Mr. Sibley gave evidence that he zigzagged away from the rather uniform  
route indicated by the GPS, which, if correct, might well increase the proportion of the land which  
he would have been able to observe. The Board notes that the GPS track shows a very regular path.  
If one accepts Mr. Sibley=s evidence that he did zigzag, the Board notes that he, in his evidence,  
agreed to the suggestion that the property was about 5 kilometres long and about half a kilometre  
wide. If, for the purposes of this analysis, one accepts the recollection of Mr. Ryle and Mr. Harrison  
that the visit took five hours, the Board finds that Mr. Sibley=s inspection of this heavily wooded,  
and sometimes extremely sloped, property was necessarily one which touched on only a relatively  
small proportion of the property, leaving the balance unseen. This conclusion contrasts with the  
assertion made by Mr. Harrison in the course of his testimony that he and the group A. . . kind of  
went back and forth on pretty much the entire property . . .@ The Board finds instead that the group  
did not see Apretty much the entire property,@ but could have, in fact, seen no more than a relatively  
small proportion of it. For example, the area of Westchester II East (accepting that it has never  
actually been surveyed) is deemed to be about 725.5 acres, is irregular in topography, and has (as is  
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demonstrated to the Board=s satisfaction by Ms. Haylock=s evidence) a wide variety of vegetation  
(specifically, different species of trees, in various Astands@) growing upon it. Moreover, while the  
Board received a significant amount of evidence about the West Branch of the Wallace River and its  
escarpments, it is not the only watercourse on the property, there being at least three other  
watercourses traversing, in whole or in part, the 656 acres which lie to the east of the river. Even if  
one assumes that the trip took five hours, or 300 minutes (as claimed by Mr. Harrison and Mr. Ryle),  
this is an average of over 105,000 square feet per minute, or about 2.4 acres per minute. By any  
standard, inspection of 2.4 acres per minute, on foot, is, in the Board=s judgment, a quick  
examination of a property which is anything but flat, open, and uniform. Moreover, the rate of over  
105,000 square feet per minute does not take account of any stops made by the group to allow GPS  
readings to be taken by Mr. Speight, a process complicated by the difficulties in obtaining a reliable  
signal under the heavy forest cover; it also does not take account of any pauses occurring when Mr.  
Sibley made whatever examinations he made at various points in inspecting for blueberries. Mr.  
Sibley acknowledged on cross-examination that there were Alarge areas of the property@ which he  
had not specifically observed. In the Board=s judgement, what happened on July 3, 1998 was an  
inspection which necessarily involved relatively small samples of the property.  
[456] The Board also notes that Mr. Sibley, in his evidence, indicated he would be  
surprised if the majority of property was hardwood, while Ms. Haylock=s evidence (supported by  
Mr. Harrison), is that 90% of it is indeed hardwood C an assertion which the Board, on the balance  
of probabilities, accepts.  
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[457] Mr. Sibley did not choose to avail himself, in the way that Ms. Haylock did,  
of data based on aerial photographs of the area in reviewing the timber which was on the property, or  
in making global judgments with respect to development of the property for blueberries. Unlike Ms.  
Haylock, Mr. Sibley was neither familiar with, nor did he attempt to use, forest cover mapping, to  
assist him either in the preparation for his July 3, 1998 visit, or development of his conclusions after  
the visit. Indeed, he indicated a lack of familiarity with tree cover maps, admitted that he had not  
used such map documentation in the course preparing his opinion, and had not (even though the  
Athol Report was available and contained a detailed analysis of timber on the property) read Ms.  
Haylock=s report in preparation for his testimony.  
[458] The Board considers that these and other evidentiary matters mean that it  
should properly give less weight to Mr. Sibley=s opinions in general, and to, in particular, his  
opinions as to the nature of the lands at Westchester II East, including his opinions with respect to  
the likely speed of development and his categorization (using the letters D, E, F, G, H) of the lands,  
all of which he derived from the information gathered during the July 3, 1998 visit.  
[459] Mr. Ryle affirmed on cross-examination that his assumption was that 4,000  
pounds of blueberries per acre would be produced on average by each of the 400 new acres six years  
after each acre was cleared. For reasons explained elsewhere, the Board prefers the evidence of  
others with respect to the likely level of production, and has adopted a yield of 2,500 pounds per  
acre instead.  
[460] The Board=s focus in this part, however, is not upon a yield figure but upon  
the six year period hypothesized by Mr. Ryle. The evidence of Mr. Harrison supported that of Mr.  
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Ryle, and, in fact, even went beyond it. Mr. Harrison, in his evidence, asserted that he could develop  
the Westchester II acreage far faster than even Mr. Ryle asserted, but Mr. Ryle said that his proposed  
development plan was one which would Astretch the financial and physical resources of the  
enterprise to the limit,@ seeing Alittle or no scope@ for a faster rate of development. Mr. Harrison  
asserted that he had seen forest land cut, stumped and levelled in Prince Edward Island and, he  
maintained, brought Ainto fairly good production within three years.@ He also referred to a  
particular piece of land in the Westchester area which had been, he said, Aalmost completely vined@  
in two years. If Mr. Harrison was indeed intending to suggest that full production could normally be  
obtained within that time period, the Board sees his evidence as inconsistent with all of the other  
evidence from all of the other witnesses before the Board C even that of Mr. Ryle.  
[461] Moreover, the Board sees Mr. Ryle=s assertions (and the assumptions in his  
calculations) of full production within six years of the commencement of development as  
inconsistent with the preponderance of the other evidence. The assertion of a six year period is also  
inconsistent with certain parts of Mr. Ryle=s own report, and, the Board notes in passing, his own  
prior evidence in Johnson. In the Johnson case, when asked how long it took to make a field fully  
productive from the time trees were cut down, Mr. Ryle answered  
. . . it can take anywhere from five years to twenty.  
[462] At page 9 of his report in the present proceeding, Mr. Ryle, in discussing the  
possibility of the claimant developing alternative lands to those in the leased Bogle property (a part  
of the present claim in which, the longer the period for development, the greater the compensation),  
states that such development is  
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. . . a process which (as detailed later in the report) takes a minimum of six years before  
anything like full productivity is attained. [emphasis added]  
There is no subsequent reference, whether detailed or not, to a six year period in the  
report.  
[463] Mr. Sibley, a source to whom Mr. Ryle referred in his assertions of a six year  
period, did not, as the Board has already noted, submit a written report of his own. Referring to his  
consultations with Mr. Sibley, Mr. Ryle testified:  
. . . this is not my estimation, it's Jack Sibley's C but on that particular piece of land there,  
which is very favourable, that you would get a full crop within six years. [emphasis added]  
While part of Mr. Sibley=s oral evidence did support Mr. Ryle=s claim of needing just six  
years on average to achieve full production, the overall thrust of Mr. Sibley=s evidence, in  
the judgment of the Board, ultimately did not: the Board saw his evidence as being, in part,  
internally inconsistent, and ultimately suggesting that achieving full production would take  
significantly longer than six years.  
[464] Part of Mr. Sibley=s evidence did directly support the Ryle assumption of full  
production at the end of six years. At one point in his testimony, Mr. Sibley was asked by counsel  
for the claimant if he was Atalking about full production within four to six years of these lands.@  
Mr. Sibley replied that it would take Asix years to get the full production.@ In similar vein, Mr.  
Sibley elsewhere asserted that, once land with blueberry potential is cleared, the existing blueberry  
growth under the surface Aliterally mushrooms up and fills the field.@  
[465] Other parts of Mr. Sibley=s evidence were less consistent with the assumption  
in the Ryle Report of full production in six years. Shortly after asserting that Afull production@  
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would be achieved in six years, Mr. Sibley said that he would Ahate to stake my life@ on full  
production within six years, but that Asome of it possibly@ would be in full production in six years.  
At one point, he referred to getting just Agood production in six years@ with yields improving  
thereafter. Further, while on direct examination he said that six years for development would be an  
Aaverage,@ he later admitted on cross-examination that, in his discovery examination, he had said  
that, if there was variation from six years, it would more likely be toward an increased number of  
years.  
[466] At another point, Mr. Sibley seemed to move further away from the  
hypothesis of full production in six years, now testifying that his advice to Mr. Ryle had been:  
. . . you should allow for six years to get the property developed to any substantial production.  
[emphasis added]  
Finally, in testimony which the Board saw as having an illuminating imprecision (which  
contrasted with his earlier assertions that it would take only six years to get full production,  
with plants literally mushrooming up in fields), Mr. Sibley admitted:  
The total acreage isn't going to be in full production in the six years. I would say in ten years  
it's probably going to be full production of all acreage if it's managed properly and so on. And  
that yield [referring to 4,000 pounds per acre] is not unreasonable to expect. I know, you  
know, fields in that area that yield that amount, that have been in production for a number of  
years. So certainly, looking ahead in the next -- you know, over that program and over 20  
years, I believe it's certainly a reasonable figure in my mind. [emphasis added]  
In short, if one attempts to summarize the breadth of Mr. Sibley=s evidence, it ranges from  
an assertion that it would take Asix years to get the full production@ to the statement that  
Athe total acreage isn=t going to be in full production in the six years,@ to a reference of  
getting full production after 10 years, to a reference of getting full production over 20 years.  
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The Board does not see Mr. Sibley=s evidence, taken in its totality, as being consistent  
with the assumption in the Ryle Report of full production for every acre developed, within  
six years of development commencing.  
[467] Turning from Mr. Sibley=s testimony at the Board hearing to the other  
sources of information before the Board, one finds even less support for the notion that each acre of  
blueberry land can be reasonably expected to achieve a full development potential (whether that be  
4,000 pounds per acre, as claimed by Mr. Ryle, or the lower figure of 2,500 pounds per acre, as  
found by the Board elsewhere in this decision) within six years. For example, even Mr. Sibley=s  
1994 Situation Report for blueberries (at the end of which appear the words Aprepared by: Jack  
Sibley, Horticulturist,@ apparently the last report which so bears his name), points to maximum  
blueberry yields not being something which are achieved quickly. Referring to Cumberland County,  
the report says that yields in that County are generally higher than other areas of the province,  
explaining:  
. . . development of large acreages took place first in this county, and many fields have been  
continually improved by a good cultural program over a long period of time. [emphasis added]  
The 2000 Situation Report (which was not prepared by Mr. Sibley) embodies the same  
concept, once again noting that A. . . many fields have been continually improved . . . over  
a long period of time . . .@ with consequent improvement in yields.  
[468] Dr. Eaton concluded that eventual development of 400 acres of blueberry  
lands in Westchester II East was a possible scenario, which he regarded as reasonable given the land  
type and the climate of the area. He even considered that more than 400 acres of blueberry land  
might possibly be developed in Westchester II East, given the existing blueberry fields along the  
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Webb Mountain Road which are very close to the eastern part of Westchester II East. He disagreed,  
however, with the assumption in the Ryle Report that full production of the entire property could be  
achieved as rapidly as Mr. Ryle hypothesized.  
[469] In Dr. Eaton=s view, development of blueberry plants would be considerably  
slower than suggested in the Ryle Report, especially if there are large areas in the forest which are  
currently completely devoid of blueberry plants. Dr. Eaton said that, in his opinion, development of  
blueberry plants is Agenerally quite slow,@ saying that a minimum of 10 to 15 years of management  
is necessary before even land with high blueberry potential will reach full production; Dr. Eaton=s  
inspection of the western edge of Westchester II East disclosed blueberry plants only when there was  
sufficient light. He said that the speed of plant development is determined, in part, by the number of  
blueberry plants present at the beginning, by the soil conditions, and by the type of weed  
competition which occurs after land is cleared. He cited articles in the literature in support for his  
view that, while the best blueberry land is abandoned farmland, even blueberry plants in old fields  
take 15 to 25 years to reach their maximum populations. In contrast with Mr. Sibley=s assertion that  
blueberry plants literally mushroom up in fields, Dr. Eaton said that a rooted blueberry clone can  
take as long as 20 years to advance from a seedling to a diameter of 2 to 3 feet. Dr. Eaton indicated  
that his own personal observations of blueberry lands over the previous 28 years indicated that new  
land usually develops quite slowly, unless there are numerous blueberry plants present when the  
trees are removed.  
[470] Moving from the subject of the development of blueberry fields in general to  
the Westchester II East property in particular, Dr. Eaton visited the wooded areas of Westchester II  
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East at its western end. Unlike Mr. Sibley (who traversed the length of Westchester II East in his  
visit in July of 1998), the Board notes that Dr. Eaton did not go more than 200 feet into the property.  
The area Dr. Eaton inspected is the western edge of the 34.5 acre parcel between the right-of-way  
and the top of the escarpment leading down to the West Branch of the Wallace River. At one point  
in his testimony, Mr. Ryle (referring to the shape and size of this parcel, and to its allegedly being  
85% to 95% developable according to Mr. Sibley) called this area Asomething of a crown jewel@ in  
his proposed blueberry development plan. The Board does note, that in his report, Mr. Ryle also  
described the entire 725.5 acre parcel at Westchester II East as Athe crown jewel,@ and that he  
likewise used this term in describing land belonging to his client in the Johnson expropriation.  
[471] When Dr. Eaton explored at the edge of the Rushton property, he found  
blueberry plants, as long as there was sufficient light, but in areas where there was complete canopy  
cover, he did not detect their presence. This was also true of the lands which he believed to be part  
of the claimant=s field: in his inspection of the western end, he could not find any blueberry plants,  
Aeven in open clearings.@ In his opinion, these observations indicated that development of the  
claimant=s land as fully producing blueberry property would be slower than suggested in the Ryle  
Report. Dr. Eaton=s report notes that fewer blueberry plants usually exist where there are mature  
forests with full canopy cover. It is the evidence of Ms. Haylock that the majority of Westchester II  
East has mature forest with full canopy cover, and the Board so finds. The Board notes that Mr.  
Sibley, in his oral evidence, also agreed that large areas of Westchester II East are covered with  
tightly knit tree cover.  
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[472] The reduced rhizome growth as observed by Dr. Eaton is, in part at least,  
consistent with the certain of the observations of Mr. Sibley in the same area. In his testimony, Mr.  
Sibley said that, while there was evidence of blueberry growth in this particular area, it was:  
. . . harder to assess because it's an old stand of hardwood area, and you really have to look  
for signs of the blueberry rhizome growth.  
Although the evidence of both Mr. Sibley and Dr. Eaton is of a lesser amount of rhizome  
growth in the area in question, both Mr. Sibley and Dr. Eaton also note that the presence of  
Mr. Rushton=s field, just to the south, which is presently in complete blueberry production,  
supports the view that a potential for blueberry development exists in the adjoining  
Westchester II East land.  
[473] Taking into account the rhizome growth which he observed, as well as his  
observations of the effects of full canopy cover in mature forests, Dr. Eaton concluded that  
development of the claimant=s land in Westchester II East as a fully producing blueberry property  
would occur more slowly than was suggested in the Ryle Report. He also related reduced presence  
of blueberry plants not just to the rate of development, but to the potential for development, i.e., the  
chance that an area of land would develop into blueberry lands. He agreed on cross-examination  
that, the greater the coverage of blueberry plants, the faster one could expect lands to come into  
production, or the greater the chance that the lands would come into production at all.  
Finding  
[474] That the lands in Cumberland County, including those in Westchester, have,  
in general, good potential for blueberry production is not, it seems to the Board, a matter disputed by  
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either party in this proceeding. The Board accepts, on the balance of probabilities, and in the  
absence of any significant contradictory evidence before it, the assertion in the Ryle Report that 400  
acres of the subject lands can be considered to have blueberry potential. This assertion was accepted  
by Dr. Eaton. The Board does not, however, consider that the preponderance of the evidence before  
it (including that of Dr. Eaton, to which the Board attaches considerable weight), is consistent with  
the view that full production of all 400 acres (assuming the claimant actually attempted such a  
development program) could be expected to be achieved within a period of six years from the date  
development of a particular acre begins. To the contrary, the Board finds, on the evidence before it  
about speed of development, that there are significant differences in the periods of time needed for  
development, even within the same field, owing to a multitude of differences, including such factors  
as topography (such as the slope of fields), sun exposure, the genetic makeup of the particular plants  
in the area, the density of plants, and the development of these blueberry fields from forest, rather  
than former farm fields. On the latter point (i.e., that the property is forested), there is unrebutted  
evidence of heavy forest cover over the majority of the property, which are relevant to Dr. Eaton=s  
observations of blueberry density in shaded versus unshaded areas, and his particular observations of  
these areas on the edges of the Rushton field and the Westchester II East property.  
[475] On the evidence before it, the Board finds that it is likely that the amount of  
time to reach the full potential for development of much of these blueberry lands may well exceed  
the upper end of the minimum range of 10 to 15 years posited by Dr. Eaton, i.e., may be 20 years or  
more. Moreover, the Board finds that, on the balance of probabilities, any blueberry lands  
developed in the Westchester II East property would be variable in yield, with some parts producing  
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more than average, some producing less, as a result of such things as soil condition, density of  
rhizomes, species of blueberries present, slope of the lands, and all the other myriad of factors  
affecting yield rates. The Board recognizes the impossibility, on the evidence, of setting a figure  
which it can declare to be accurate; it must nonetheless set a figure for purposes of calculations in  
the present proceeding.  
[476] Again mindful of the approach to expropriation and compensation embodied  
in such case law as Dell and Halifax (Regional Municipality) v. Turner Drake & Partners Ltd.,  
[1998] N.S.J. No. 150 (discussed in more detail later in this decision, under AStatutory Interpretation  
and Expropriation Matters: Presumption in Favour of Compensation@), and taking into account all  
of the evidence, the Board will assume, for purposes of this proceeding, that each acre of the subject  
property could achieve its full potential (which, as explained elsewhere, the Board finds to be an  
average of 2,500 pounds per acre, not 4,000) 15 years after development commenced of that  
particular acre.  
[477] Nevertheless, the Board also considers that partial production on these lands  
could be expected to begin earlier than 15 years. In this regard, the Board notes that Mr. Ryle  
(having asserted that 4,000 pounds per acre would be the average yield at Year 6) asserts in his  
Exhibit H-51 (supplied during Mr. Ryle=s oral testimony before the Board) a document produced by  
him in the course of the hearing before the Board, i.e., much later than his original report, that at  
Year 4, an average yield per acre could be expected of 1,000 pounds per acre.  
[478] In the view of the Board, on the evidence before it, some significant blueberry  
production might well be expected to begin after six years of development, and could be expected to  
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increase between the seventh and the fifteenth years. Accordingly, taking into account all of the  
evidence before it, the Board fixes the average rate of production per acre at 1,000 pounds per acre  
for Years 7 to 10; 1,750 pounds per acre for Years 11 to 14 and 2,500 pounds per acre for Year 15  
and beyond. In setting these figures, the Board notes it has no detailed evidence whatever to allow it  
to, with any semblance of precision, calculate the likely level of production on average per acre for  
the time periods to which it has just referred, and that it recognizes the element of arbitrariness  
inherent in such a determination.  
Board Table No. 1  
Estimated Loss re Delay of Development (Ryle=s Report)  
Ryle (Discount @ 2.5%)  
Bradley (Discount @ 15%)  
UARB (Discount @ 8%)  
Ryle  
Est.  
Ryle  
Profit  
Per  
Acre  
Est. Profit  
shortfall  
Est.  
ROI  
# of  
Acres  
Discount  
Factor @ 2.5%  
Discounted  
Value  
Discount  
Factor @ 15%  
Discounted  
Value  
Discount  
Factor @ 8%  
Discounted  
Year  
8%  
Value  
1,109  
2,053  
2,851  
3,520  
3,260  
3,018  
2,795  
2,588  
2,396  
2,218  
2,054  
1,902  
1,761  
1,631  
1,510  
1,398  
7
25  
950  
950  
950  
950  
950  
950  
950  
950  
950  
950  
950  
950  
950  
950  
950  
950  
23,750  
47,500  
71,250  
95,000  
95,000  
95,000  
95,000  
95,000  
95,000  
95,000  
95,000  
95,000  
95,000  
95,000  
95,000  
95,000  
1,900  
3,800  
5,700  
7,600  
7,600  
7,600  
7,600  
7,600  
7,600  
7,600  
7,600  
7,600  
7,600  
7,600  
7,600  
7,600  
0.8413  
0.8207  
0.8007  
0.7812  
0.7621  
0.7436  
0.7254  
0.7077  
0.6905  
0.6736  
0.6572  
0.6412  
0.6255  
0.6103  
0.5954  
0.5809  
1,598  
3,119  
4,564  
5,937  
5,792  
5,651  
5,513  
5,379  
5,248  
5,120  
4,995  
4,873  
4,754  
4,638  
4,525  
4,415  
0.3759  
0.3269  
0.2843  
0.2472  
0.2149  
0.1869  
0.1625  
0.1413  
0.1229  
0.1069  
0.0929  
0.0808  
0.0703  
0.0611  
0.0531  
0.0462  
714  
1,242  
1,620  
1,879  
1,634  
1,420  
1,235  
1,074  
934  
0.5835  
0.5403  
0.5002  
0.4632  
0.4289  
0.3971  
0.3677  
0.3405  
0.3162  
0.2919  
0.2703  
0.2502  
0.2317  
0.2145  
0.1987  
0.1839  
8
50  
9
75  
10  
11  
12  
13  
14  
15  
16  
17  
18  
19  
20  
21  
22  
100  
100  
100  
100  
100  
100  
100  
100  
100  
100  
100  
100  
100  
812  
706  
614  
534  
464  
404  
351  
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Ryle (Discount @ 2.5%)  
Bradley (Discount @ 15%)  
UARB (Discount @ 8%)  
Ryle  
Est.  
Ryle  
Profit  
Per  
Acre  
Est. Profit  
shortfall  
Est.  
ROI  
# of  
Acres  
Discount  
Factor @ 2.5%  
Discounted  
Value  
Discount  
Factor @ 15%  
Discounted  
Value  
Discount  
Factor @ 8%  
Discounted  
Year  
23  
8%  
Value  
75  
50  
25  
950  
950  
950  
71,250  
47,500  
5,700  
3,800  
0.5667  
0.5529  
0.5394  
3,230  
0.0402  
0.0349  
0.0304  
229  
0.1703  
0.1577  
0.1460  
971  
24  
25  
2,101  
133  
599  
277  
23,750  
1,900  
1,025  
58  
Rounded difference  
1,520,000  
121,600  
81,914  
16,058  
37,910  
Estimate 34.5 acres/400 acres = 8.625%  
Estimate 69.5 acres/760 acres = 9.14%  
7,065  
7,491  
1,385  
1,468  
3,270  
3,467  
See Bradley=s Report Schedule 12C and 12D  
Board Table No. 2  
Estimated Loss re Delay of Development (see Bradley=s Report, Schedule 12C)  
Comparison based on discount factor using 2.5% (Ryle), 15% (Bradley), and 8% (UARB)  
Bradley  
Ryle (Discount @ 2.5%)  
Bradley (Discount @ 15%)  
UARB (Discount @ 8%)  
Est.  
Profit  
Per Acre  
# of  
Acres  
Est. Profit  
shortfall  
ROI  
8%  
Discount  
Factor @ 2.5%  
Discounted  
Discount  
Factor @ 15%  
Discounted  
Discount  
Factor @ 8%  
Discounted  
Value  
Year  
Value  
Value  
195.49  
339.98  
443.45  
514.14  
447.08  
388.77  
338.06  
293.96  
255.62  
222.28  
193.29  
168.07  
146.15  
127.09  
7
25  
260  
260  
260  
260  
260  
260  
260  
260  
260  
260  
260  
260  
260  
260  
6,500  
13,000  
19,500  
26,000  
26,000  
26,000  
26,000  
26,000  
26,000  
26,000  
26,000  
26,000  
26,000  
26,000  
520  
1,040  
1,560  
2,080  
2,080  
2,080  
2,080  
2,080  
2,080  
2,080  
2,080  
2,080  
2,080  
2,080  
0.8413  
0.8207  
0.8007  
0.7812  
0.7621  
0.7436  
0.7254  
0.7077  
0.6905  
0.6736  
0.6572  
0.6412  
0.6255  
0.6103  
437.46  
0.3759  
0.3269  
0.2843  
0.2472  
0.2149  
0.1869  
0.1625  
0.1413  
0.1229  
0.1069  
0.0929  
0.0808  
0.0703  
0.0611  
0.5835  
0.5403  
0.5002  
0.4632  
0.4289  
0.3971  
0.3677  
0.3405  
0.3162  
0.2919  
0.2703  
0.2502  
0.2317  
0.2145  
303.42  
561.88  
780.39  
963.44  
892.08  
826.00  
764.81  
708.16  
655.70  
607.13  
562.16  
520.52  
481.96  
446.26  
8
50  
853.58  
9
75  
1,249.14  
1,624.89  
1,585.26  
1,546.60  
1,508.87  
1,472.07  
1,436.17  
1,401.14  
1,366.97  
1,333.63  
1,301.10  
1,269.36  
10  
11  
12  
13  
14  
15  
16  
17  
18  
19  
20  
100  
100  
100  
100  
100  
100  
100  
100  
100  
100  
100  
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Bradley  
Ryle (Discount @ 2.5%)  
Bradley (Discount @ 15%)  
UARB (Discount @ 8%)  
Est.  
Profit  
Per Acre  
# of  
Acres  
Est. Profit  
shortfall  
ROI  
8%  
Discount  
Factor @ 2.5%  
Discounted  
Discount  
Factor @ 15%  
Discounted  
Discount  
Factor @ 8%  
Discounted  
Year  
Value  
1,238.40  
1,208.20  
884.05  
Value  
110.51  
96.10  
62.67  
36.33  
15.80  
4,395  
Value  
413.20  
382.60  
265.69  
164.01  
75.93  
21  
22  
23  
24  
25  
100  
100  
75  
260  
260  
260  
260  
260  
26,000  
26,000  
19,500  
13,000  
6,500  
2,080  
2,080  
1,560  
1,040  
520  
0.5954  
0.5809  
0.5667  
0.5529  
0.5394  
0.0531  
0.0462  
0.0402  
0.0349  
0.0304  
0.1987  
0.1839  
0.1703  
0.1577  
0.1460  
50  
574.99  
25  
280.48  
Rounded difference  
416,000  
33,280  
22,572  
10,375  
Estimate 34.5 acres/400 acres = 8.625%  
Estimate 69.5 acres/760 acres = 9.14%  
195  
38  
89  
2,063  
402  
948  
XIII DISCOUNT RATE  
[479] The appropriate discount rate to apply to the losses claimed is one of the key  
points in dispute between the parties, with the witnesses who provided opinion evidence suggesting  
rates ranging from 2.5% to 25% could reasonably apply. A difference in the discount rate can have  
radical effects upon the amount of compensation which is ultimately paid: the lower the discount  
rate, the lower the compensation. For example, a calculated accumulated claim used in the Ryle  
Report of about $239,000 for additional costs of development and operations, if discounted over 25  
years at 2.5% (as advocated by Mr. Ryle), yields a present value of about $166,000; if a discount  
rate of 15% (the figure which Mr. Bradley ultimately argued should apply) is adopted, the  
discounted present value is about $47,000.  
Bradley Evidence Re Discount Rate  
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[480] The material reviewed by Mr. Bradley for the preparation of his report  
included the Omond appraisal, the Ryle Report, certain of the claimant=s annual financial statements  
and corporate income tax returns, the claimant=s sales documentation for 1991 to 1999, summaries  
of the claimant=s blueberry production and purchases for 1990 to 2002, annual yields and acreages  
harvested for 1990 to 2000, the offer of compensation dated January 9, 1997 by the province, the  
statistical data on blueberry production in Nova Scotia produced by Statistics Canada, a 1993 report  
on the commercial potential of blueberries in Prince Edward Island, the 2000 Situation Report on  
wild blueberry production marketing in Nova Scotia, the Ryle Report, the Eaton Report concerning  
the Ryle Report, the Eaton Report entitled ADetermining Costs of Producing Wild Blueberries in  
Nova Scotia,@ and the Canadian Economic Observer.  
[481] Mr. Bradley also spoke with industry participants, including: Dr. Eaton,  
concerning factors affecting yields; Dale McIsaac, concerning profits per acre and production costs;  
Graham Wood of Bragg Lumber. He did not talk with Mr. Harrison.  
[482] 2.5% (Mr. Ryle=s figure) is characterized by Mr. Bradley and Mr. Keough as  
being a risk-free discount rate, i.e., one which, theoretically at least, is the hypothetical real rate of  
return that a person can receive on a risk-free investment, in excess of inflation. Mr. Bradley asserts,  
and Mr. Keough essentially agrees, that damage quantification principles in business loss cases  
generally hold that damages which involve uncertainty are not discounted at a risk-free rate.  
[483] To use a risk-free rate for calculation of damages (as postulated, for example,  
by the Ryle Report) would be, according to Mr. Bradley, to imply that the claimant had perfect  
certainty that the estimated profit streams would in fact be realized and that the estimated additional  
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expenses would in fact be incurred. According to Mr. Bradley, such an assumption ignores the fact  
that the claimant=s enterprise is exposed to uncertainties, and, as with any business, has its own set  
of strengths and challenges. Mr. Bradley asserted that in estimating an appropriate discount range,  
one should take into account, among other things, the following factors: the rates of return available  
on alternative investments with varying returns and varying risks; the historical sales and  
profitability of the company; the economic and industry outlook; and the strength and challenges of  
the business. For example, Mr. Bradley stated the long-term Canada bond rate was 8.28% for 1995,  
noting that this was a nominal rate which Aincludes inflation@ (i.e., no adjustment is made to the rate  
to account for the portion which simply resulted from inflation). As another example, the  
conventional five year mortgage in 1995 was 9.16%; the 2001 rates for long-term Canada bonds and  
mortgages were, respectively, 5.78% and 7.40%). Mr. Bradley said that the American S&P index is  
a common benchmark, with the rates of return over the years indicating that there is a Arisk  
premium@ of about 8% on top of the rate of return for a Arisk-free@ government bond; thus, an  
investor in the S&P expects Aa rate of return in the vicinity of 10.5% on a real basis,@ i.e., after  
adjustment for inflation. Mr. Bradley stated that, in his opinion, the additional risk inherent in a  
small business, or what he termed the Arisk premium,@ is about 8%, with the additional risk  
reflecting such things as less ability to get new financing and less depth in management. Adding  
together the equity risk premium, the small business premium, and the risk-free rate, suggested, he  
testified, that the appropriate risk adjusted rate could be considered to be in the area of 20% to 25%.  
Mr. Bradley had conducted discount rate analyses for other farm cases, one involving a dairy farm,  
and one involving a poultry farm, and found a discount rate of between 15 and 20% in each instance.  
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[484] Mr. Bradley considered that the blueberry marketing system in Nova Scotia is  
well developed. Mr. Bradley also considered the claimant to have a long history in the industry, and  
to have experienced significant growth. Further, the claimant=s business has become widely  
diversified, and now involves not just growing berries for sale, but custom work, wood sales, and the  
purchase of blueberries from other persons (brokerage). The challenges noted by Mr. Bradley were  
uncertainties with respect to growing conditions and crop yields, relatively low yield for the  
claimant during the 1990/2000 period, the uncertainty of input and commodity prices, with particular  
reference to the wide fluctuations of the price of blueberries on world markets over the period 1992  
to 2002, increased competition from other commodities, such as highbush blueberries, increased  
competition from other geographic regions, including the United States and Europe, and the reported  
relatively low level of profitability by the company during 1990 to 1999.  
[485] On the basis of the evidence before it, the Board considers that the relatively  
low average yield for the claimant during the period 1990 to 2000 and the relatively low level of  
profitability during the same period could be ascribed, at least in part, to the economic and  
agricultural effects of land levelling and rock picking. By economic, the Board refers to the  
significant additional expenditures involved in carrying out this work; by agricultural, the Board  
refers to the sharply diminished yields which may occur for a few years after such work is done.  
[486] He suggested that factors which further needed to be taken into account  
included: the question of whether or not crop yields on the newly developed lands would be  
sufficient to warrant continued production; whether the cost to develop the lands might be greater  
than initially forecast; and whether economic or industry conditions might change to make it  
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uneconomic to develop the lands. On the latter point, Dr. Eaton noted an historic association  
between increased prices and increased development of blueberry land.  
[487] Mr. Keough had referenced the interest rate on debt as being a useful  
reflection of risk level. In Mr. Bradley=s view, while the debt rate can be a benchmark, the required  
rate of return for a business should be greater than the rate of return on debt, Mr. Bradley saying that  
Avirtually always@ the interest rate on debt is less than the rate of return on equity.  
[488] Taking into account all of the factors, and the range of arguably applicable  
discount rates (from 2.5% to 25%), Mr. Bradley concluded that a discount rate of 15% would  
approximate the required rate of return (net of inflation) to be used in estimating the alleged future  
loss of profits relating to future loss of production on the Bogle lands.  
[489] With respect to excess costs of development, Mr. Bradley considered that the  
additional risk factors which he had reviewed would support a higher rate than 15%, but he adopted  
the same 15% figure nevertheless.  
[490] With respect to the Bogle lands, Mr. Bradley said that a discount rate of 15%  
with respect to future business losses was appropriate, but that past loss of profits did not involve the  
same uncertainty with respect to prices, yields, costs, and general business risk, so that past loss of  
profits could be appropriately discounted at 2.5%. Future loss of profits, however, must, in his view,  
be discounted at 15% to reflect the uncertainty associated with them. As the Board discusses  
elsewhere in this decision, however, it has concluded that the claimant has not established a case for  
lost profit, whether past or future, in relation to the Bogle property. Mr. Bradley=s analysis  
expressed no opinion on the propriety of a claim for past or future loss of profits in relation to the  
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Bogle property; instead, he assumed, following the Ryle Report, that such could be payable, for the  
purposes of calculating a discount rate.  
[491] Mr. Bradley likewise concluded that a discount rate of 15% to calculate the  
present value of excess costs over time would be appropriate for Westchester II East.  
[492] On cross-examination, Mr. Bradley agreed that, in reaching his conclusion of  
a 15% discount rate, he had not read Kenneth J. Boyd, Expropriation in Canada: A Practitioner=s  
Guide (1988), a text relied upon by the claimant in the evidence of Mr. Keough. He had not  
referred to it as a source of information in his report. He agreed that there was no other authority on  
valuation and expropriation relating to farm disturbance, disruption, or severance, which he had used  
in place of Boyd.  
Ryle Evidence Re Discount Rate  
[493] Mr. Ryle, having consulted with Mr. Gervason, used a rate of 2.5%, which he  
referred to as the Astatutory rate.@ A 2.5% discount rate is not, however, identified in the  
Expropriation Act or in any regulations made pursuant to it, nor in any other related Act. A 2.5%  
rate does appear in the Civil Procedure Rules:  
General power of court regarding evidence  
Rule 31.10.  
(2)  
The rate of interest to be used in determining the capitalized value of an award in  
respect of future pecuniary damages, to the extent that it reflects the difference  
between estimated investment and price inflation rates, is two and one-half per cent  
(22%) per annum. [Amend. 24/11/80]  
The Civil Procedure Rules apply to proceedings in the Supreme Court, but do not apply to  
proceedings in the Board, unless adopted by the Board.  
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[494] 2.5% is the discount rate Mr. Ryle had used in his reports in Johnson and  
Williams, with, in each instance, the Board accepting 2.5% as the general rate to apply. Mr.  
Gervason asserted that 2.5% was the rate used in Williams, asserting that Williams was appealed to  
the Court of Appeal and Aupheld,@ with the 2.5% discount rate being the basis of a substantial part  
of the compensation paid in that case. As was quickly pointed out by counsel for the claimant,  
however, the 2.5% rate was part of a settlement between the Crown and the property owner, and was  
not an appealable issue in Williams. In this regard, the Board observed in Superior Propane Inc.  
v. Nova Scotia, [2004] N.S.J. No. 222:  
While the Board agrees that a 2.5% discount rate was used in the Williams decision, there  
does not appear to be any analysis as to why that discount rate was adopted either in the  
Board's decision or in the subsequent decision of the Nova Scotia Court of Appeal, N.S.  
(A.G.) v. Williams (1996), 152 N.S.R. (2d) 291 (C.A.). [para. 105]  
[495] As already noted, Mr. Gervason did not file a report in this proceeding. In his  
oral evidence, he acknowledged that he and Mr. Ryle had applied the 2.5% discount rate in the  
present case without examining (or, it seems, even obtaining copies of) financial records for the  
company to see if the rate was appropriate, and without determining whether adequate financial  
records for the company had been kept which might have helped determine an appropriate discount  
rate. With respect to such records, it was Mr. Gervason=s view, as well as Mr. Ryle=s, that  
financial statements from agricultural operations are not generally a useful indicator and often  
misleading, a conclusion he related to the effects of the special income tax rules respecting  
agricultural operations. In the view of Mr. Ryle and Mr. Gervason, this is particularly so where  
development of long-term crops such as blueberries are occurring.  
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[496] In the view of Mr. Ryle and Mr. Gervason, such documentation is misleading  
because of the unusual income tax rules which apply to agriculture. Among other things, these rules  
permit items to be depreciated at rates favourable to a taxpayer, to be counted as expenses when they  
would not be so counted for an ordinary taxpayer, and for persons completing such tax returns to  
choose to count items as an expense or not in a given year as they wish, for favourable taxation  
treatment of farm corporations, and to pay salaries or wages to family members which can be used to  
reduce taxable income. Special capital gains provisions permit relatively large scale dispositions tax  
free, and further permit (where spouses are involved in a farming operation), not simply the splitting  
of the capital gains deduction, but a special capital gains deduction of equal size. Mr. Gervason was  
particularly familiar with these rules, and the practical use made of them by farmers since he said  
that part of his business over the previous more than 30 years was preparation of farm tax returns. In  
essence, it was the position of Mr. Gervason and Mr. Ryle that the effect of income tax laws on  
agriculture is that farm financial statements do not give an accurate position of the farm=s financial  
position. In this regard, the Board concluded from all of the evidence that, since Jim Harrison=s  
takeover of the claimant in 1995, the claimant=s operations have been successful. Yet, as Mr.  
Keough pointed out, the corporate claimant has, according to its income tax returns, incurred a loss  
for income tax purposes which averaged $22,100 per year from 1995 to 2002. At least during part of  
that period, the Board notes that the claimant has been paying $57,500 per year to Jim Harrison;  
there is no evidence before the Board as to what salary, if any, is drawn by Mr. Harrison from his  
second corporation, J.C. Harrison Limited.  
Keough Evidence Re Discount Rate  
[497] Mr. Gervason and Mr. Ryle, as the Board has just noted, saw no value in  
examining the financial statements of the claimant in attempting to determine a discount rate.  
Unlike Mr. Gervason and Mr. Ryle, but like Mr. Bradley, Mr. Keough did see value in examining  
such statements, and he used them to assist in developing his recommendation as to an appropriate  
discount rate.  
[498] Nevertheless, his evidence supported the overall view (with which none of the  
other witnesses disagreed) that income tax returns alone are not entirely reliable indicators of the  
overall health of an agricultural operation. In Mr. Keough=s words, Aone must look behind the  
numbers to get the true picture.@  
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[499] The Board notes that the Boyd text, in referring to the Alberta Board=s use of  
a 1 to 5% rate, states:  
. . . if adequate financial records are kept for the farm, they may provide the best source of  
determining the discount rate . . . [p. 102]  
[500] At page 3 of his report, Mr. Keough indicates he assumes his discount rate  
will be applied to future costs and future lost profits: i.e., to  
. . . estimates of future excess costs of development and operation for the severed lands and  
to the profits lost due to the delay of a development program for the severed lands.  
[501] In preparing his report, Mr. Keough reviewed the various documents on file  
with the Board, including the Ryle and the Bradley Report, interviewed Mr. Harrison, and consulted  
with Dale McIsaac. He also discussed discount rate issues with a chartered business valuator in  
Alberta, examined British Columbia expropriation decisions, and gathered information from  
blueberry associations and Farm Credit Canada.  
[502] Mr. Keough said that the Alberta Land Compensation Board, by  
Aadministrative practice,@ applies to partial takings a discount rate, or real rate of cash return, of 1 to  
3% and for grazing land, and 3 to 5% for cultivated farming operations. The Alberta Board excludes  
capital appreciation from consideration in developing a discount rate, a practice with which Mr.  
Keough disagreed. If one were to include capital appreciation in the discount rate calculation, the  
Alberta discount rates would be increased. Mr. Keough, for the purposes of the present proceeding,  
used a capital appreciation rate of 3% per annum.  
[503] Mr. Keough saw a disparity between the very low discount rates used by the  
Alberta board and those which both he and Mr. Bradley would tend to see in other commercial  
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enterprises. Mr. Keough concluded that a relatively low rate of return seemed to be accepted by  
farmers, in comparison to other businesses.  
[504] The following observations appear at pages 6 and 7 of Mr. Keough=s report,  
in which he cites as an authority in support of his opinion, AExpropriation in Canada-A Practitioner's  
Guide (Aurora, Ontario: Canada Law Book, 1988) by Kenneth Boyd):  
In farm expropriation cases, a key factor assessed by the adjudicators is the availability of  
suitable replacement land, which the claimant may acquire to mitigate the negative effects of  
a partial taking (the negative effects typically being a higher cost structure imposed on the  
residual property, and therefore a reduction in income to the farmer). Because of the  
requirement that the land be of similar agricultural quality (to get the same crop yields) and be  
either contiguous or in close proximity to the farming operation affected, in practical terms,  
replacement land is seldom available. [emphasis added]  
In these circumstances, the theory is that the claimant does not have the opportunity to  
feasibly "reinvest" an award of compensation in the business and presumably generate a  
return higher than the risk-free rate. Accordingly, an award based on a risk free rate is  
appropriate because this is the logical investment vehicle the claimant will use to generate  
income sufficient to offset the higher costs/lost profits caused by the expropriation.  
. . .  
Although it does not specifically address the rationale for selection of the 2.5% discount rate  
used in the award of compensation, a dispassionate reading of the Williams case may lead  
one to assume that this was the rationale underpinning the URB's decision.  
[505] Mr. Keough, through a series of detailed calculations, initially involving a  
number of assumptions, explained in detail in his report and in his oral evidence, deduced an initial  
discount rate (which he was careful to characterize as Aan educated estimate@) for the claimant of  
4.48%. He added to this the appreciation in value of farmland for the eight years preceding  
December 2001 (3% per annum), and then deducted 2.5%, being his estimate for inflation, arriving  
at a return on investment which he termed Ain class of farm@ of 4.98%. Having concluded, using  
the particular method of analysis which he chose, that the claimant=s real rate of return was about  
5%, he examined data for the blueberry industry as a whole, concluding that the rate of return was  
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about 7.77% if a market value of $3,500 per acre was assumed, or 9.07% if $3,000 per acre was  
assumed (i.e, not surprisingly, concluded that the lower the price per acre, the higher the deduced  
rate of return). In his oral evidence, Mr. Keough said that the 7.77% and 9.07% could be adjusted  
by adding 3% for capital appreciation, and deducting 2.5% for inflation, so that the two figures  
would increase to roughly 8.27% and 9.57% (which Mr. Keough referred to at one point in his  
evidence as 8% or 10%). He noted that his industry figures might not take into account all costs,  
such as, for example, management costs, which would reduce the rate.  
[506] Mr. Keough also asserted that if he were to apply his same methods of  
analysis to the data appearing in the Bradley Report, a rate of return for the industry could be  
deduced which would be less than 15%, the figure applied as a matter of judgment by Mr. Bradley.  
[507] In his report, Mr. Keough said that the asset base he used for his calculation  
of the claimant=s rate of return included the blueberry lands owned by the claimant, being 430 acres  
for its 10 different properties, with an assumed value of $3,000 per acre. He also included in the  
asset base used for his calculation the claimant=s buildings and equipment, which are located at the  
Ahome farm,@ or Ahome base,@ in Southampton. The evidence indicates, however, that the claimant  
developed a significant number (at least 70, and perhaps as much as 125 acres) of the 430 acres since  
1995, meaning that all 430 acres were not in fact available for the use of the claimant throughout the  
period of Mr. Keough=s study; nevertheless, he included them in his calculations as if they had  
been. Mr. Keough agreed that if, as a result, the asset base was over stated in the time period in  
question, his calculation of a rate of return for the claimant for that time period could be understated.  
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[508] Mr. Keough=s analysis was not necessarily focussed on the Westchester  
property, but was, to some degree, company wide, including all of the claimant=s various  
undertakings (including at least ten different properties at various locations in Cumberland County,  
and in various stages of development; its custom work operations for third parties; and its blueberry  
brokerage operations).  
[509] Impliedly at least, Mr. Keough appeared to agree with the assertion by  
counsel for the Crown that the rate of return on investment which Mr. Keough had calculated  
incorporated information that included income and expenses from the claimant=s brokerage activity  
and custom work; footnote 23 of the Keough Report, for example, refers to the claimant=s blueberry  
farming and blueberry receiver/dealer operations as being Ahighly integrated.@ Mr. Keough  
admitted that he could not tell whether or not his failure to separate the blueberry farming operation  
from the brokerage or custom work operation Askewed@ the results, as Counsel for the respondent  
Crown suggested they could, but did say that, if skewing did occur, it was possible it might be to Mr.  
Harrison=s detriment. He also asserted that, from the information about the industry which he has  
gathered, he did not think it likely that a more sophisticated type of analysis, which divided the  
activities, would yield a much different result.  
[510] The Board also notes that in the period since the expropriation in 1995 the  
claimant has been engaged in a very active program which has included development of various of  
its properties, where some lands having blueberry potential being developed toward production, and  
other lands already producing blueberries being improved through such techniques as rock picking  
and land levelling. These activities, particularly rock picking and land levelling, meant increased  
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expenditure by the claimant, as well as temporarily reduced yield. Mr. Keough did attempt to take  
account of the cost of such activity in his estimation of an appropriate discount rate for the claimant.  
Nevertheless, the respondent asserted, work such as land levelling A. . . artificially and temporarily  
suppressed yields and therefore reduced profits.@ This effect cannot be, on the information before  
the Board, quantified with any precision, but could possibly, as the respondent suggests, have the  
effect of reducing the yield rate for the claimant=s operation as calculated by Mr. Keough.  
[511] The Board notes in passing here (a point which has relevance elsewhere in the  
Board=s analysis of the likely profit per acre of developed blueberry fields) that some of Mr.  
Keough=s calculations assumed an annual profit per acre of $272, and an assumed price for  
developed blueberry land at $3,000 per acre. Mr. Ryle, on the other hand, while using the same  
$3,000 per acre price, claimed an annual profit of $950 per acre. Mr. Keough, in his oral evidence,  
agreed that if he applied the same type of analysis as explained above, with an assumed land value of  
$3,000 per acre, but used Mr. Ryle=s asserted profit per acre of $950 per year, the resulting discount  
rate would be 31.67%, instead of 9.07%. With respect to the plausibility of this rate of return  
implied by Mr. Ryle=s claimed $950 per acre profit on a property costing $3,000 per acre, Mr.  
Keough=s response was a crisp, AI don=t think so.@ He went on to suggest that if, as originally  
hypothesized by Mr. Ryle, a property actually existed which cost $3,000 per acre, yielded 4,000  
pounds per acre, and produced a $950 per acre annual profit, A. . . there=d be a line up for people to  
buy it.@  
[512] The Bradley Report is likewise critical, in both tone and substance, of the  
Ryle Report=s assumption of a $950 per acre profit:  
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We noted that the Ryle Report uses a profit per acre figure of $950 to calculate annual loss of  
profits related to the Bogle Lands and the development program. Given that blueberry  
production occurs over a two-year cycle, it appears that the Ryle Report has assumed that  
the profit per acre for a given acre of blueberry land is $1,900 over a two-year production  
cycle. We compared this to available financial information to determine the reasonableness  
of the $1,900 figure.  
At Line 18 of Schedule 2, we calculated that the simple average revenue per acre was  
approximately $1,014. That is, the gross revenue per acre is lower than the profit per acre  
figure adopted in the Ryle Report. Since a calculation of profit per acre must include  
deductions for the expense items indicated at Schedule 3 (for instance, pruning, spraying,  
fertilizing, etc.), the actual profit per acre would be significantly less than the indicated  
average revenue per acre. Based upon this analysis, we concluded that the amount of $950  
per acre utilized in the Ryle Report was not reasonable. [p. 12; bold emphasis in original,  
italic emphasis added]  
[513] In short, Mr. Bradley concluded that, using the data available to him, the  
maximum gross revenue per acre which could be expected was lower than what Mr. Ryle said the  
net profit per acre would be.  
[514] The Board also notes that the profit per acre for blueberries is something  
which can vary over a remarkably wide range and is dependent upon such factors as the price per  
pound for blueberries, costs of production, and yields per acre. Mr. Keough said that, with a field  
(i.e., grower, or farm gate) price of 35 cents per pound, blueberry growers with a yield of less than  
1,875 pounds, lost money in 2002; on the other hand, if a yield of 4,000 pounds per acre were  
achieved, and a price for blueberries of 70 cents per pound assumed, the profit margin could exceed  
$2,000 per acre (over a two year cycle). The latter scenario, of course, is similar to the one which  
Mr. Ryle urges the Board to accept, as a plausible average yield and profit, for the lands of  
Westchester II East if they were developed into blueberry producing property. The Board=s finding  
with respect to likely profit per acre is found elsewhere in this decision.  
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[515] Mr. Keough suggested that, in his view, it was open to the Board, depending  
upon its view of the facts and circumstances, to use the 2.5% rate advocated by Mr. Ryle, the risk  
adjusted rate based on the claimant=s return on investment, as calculated by Mr. Keough, at 5%, or  
the risk adjusted rate based on debt rate incurred by the claimant, which he calculated to be 5.75%  
(being 8.25%, the rate on the mortgage to FCC, less 2.5% for inflation).  
Analysis  
[516] The discount rates commonly applied in Alberta to agricultural lands by that  
province=s expropriation board can range from 1 to 5%, with 3-5% being applied to cultivated land.  
The Alberta board=s discount rates, however, ignore capital appreciation, a factor which Mr.  
Keough considers relevant. The Board agrees.  
[517] In post hearing submissions, counsel for the claimant indicated it was open to  
the Board to adopt a 5% risk adjusted rate for claims relating to delay in development, but suggested  
that the risk-free rate of 2.5% should be applied to the portion of the claim relating to excess costs.  
[518] While the Bradley discount rate identifies and addresses a number of  
important factors, it does not engage in the type of numeric calculation used by Mr. Keough C  
instead, Mr. Bradley places the discount rate within the range of what he regards as possible rates  
(2.5% to about 25%) at 15%. Mr. Bradley freely acknowledges that his adoption of a 15% discount  
rate is a matter of personal judgment. Mr. Bradley was conscious of the availability of the approach  
used by Mr. Keough, but did not consider it would give an appropriate measure of the required rate  
of return. In his view, it is too dependent upon assumptions about yield or the value of the land at  
the time of the calculation. Mr. Bradley said that, rather than doing a calculation based upon return  
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on assets (which he considered Mr. Keough had done), he preferred a calculation based upon a  
return on equity. Mr. Bradley saw his own approach, which looked at assessing an investor or  
business operator=s required rate of return over a long term, as being less subject to the variability or  
volatility of such things as the particular market value of land at a particular moment in time.  
[519] Counsel for the respondent also suggested that Mr. Keough=s reliance upon  
financial information from a time period in which significant land levelling work was being carried  
out, which would therefore reduce yields and profits, although only temporarily, could have affected  
his conclusions. The Board notes here as well that it was the submission of counsel for the  
respondent that Mr. Keough=s use of a rate of return on investment was subject to wide variations,  
depending upon land values and profits, which can vary from year to year. As a result, he suggested,  
the Keough conclusion was Atoo point-in-time focussed.@  
[520] On the other hand, Mr. Keough=s approach did not merely adopt a quasi  
statutory rate of 2.5%, as advocated by Mr. Ryle and Mr. Gervason, but used detailed financial  
information about the claimant, and about the industry as a whole. Mr. Keough=s derivation of  
discount rates for the claimant itself, and for the industry as a whole, used reasonably clearly stated  
approaches, as did his Atesting@ (as he put it) of the Boyd approach against the valuation theory  
approach with which he and Mr. Bradley were familiar. The principal Keough conclusion of 5% is,  
however, based on a number of assumptions. Mr. Bradley suggests that the Keough calculation is  
based upon an assumption that a return on the asset value, rather than on the return on equity, is a  
more appropriate approach. Mr. Keough further assumes that using the widely diversified operation  
of the claimant (including development, blueberry production and harvesting operations on its own  
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lands, wood fibre production on its own lands (its lands comprising, as already noted, including at  
least ten separate properties and 2,000 acres, in widely scattered locations), and a provision of a  
wide range of custom services to third parties, including development lands, harvesting, etc. with  
respect to, not simply blueberry harvesting, but a wide range of other services to other growers, and  
the availability to the company at least 10 different properties with significant acreages of different  
types), would not form an inappropriate basis for calculating the discount rate applicable to the  
present proceedings.  
[521] Mr. Keough=s approach also assumes a degree of reliability of, and  
confidence in, farm financial reports, a confidence not apparently shared by Mr. Ryle and Mr.  
Gervason. In particular, it also assumes some degree of reliability in the data which Mr. Keough  
obtained from the claimant. The Board notes that data supplied by the claimant, whether through its  
principal, Mr. Harrison, through Mr. Ryle, or through its counsel, underwent significant changes. It  
further notes that Mr. Harrison, on occasion, made assertions which were not consistent with the  
balance of the evidence. For example, Mr. Harrison told Mr. Omond that 4,000 pounds per acre  
was a normal yield when, even according to the evidence supplied by the claimant, this only had  
occurred in one year in the small Westchester II field, and had never occurred in any other years or  
any other fields. He also testified to growers or farm gate prices which were not consistent with the  
balance of the evidence, being higher than those found anywhere in the evidence except that from  
Mr. Ryle, and stated an upper range for brokerage fees which was not consistent with, or supported  
by, the evidence from any other sources. In his testimony, Mr. Harrison seemed to attempt to  
distance himself from certain of the numbers used by Mr. Keough in some of his calculations, such  
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as for costs, even though those numbers had been adopted by Mr. Keough after repeated consultation  
(both by meeting and by telephone) with Mr. Harrison. Mr. Harrison claimed, in the course of his  
testimony, that the claimant=s actual costs, because it Ahas the equipment and the manpower@ are  
Asomewhat less@ than those asserted by Mr. Keough. The Board also notes that Mr. Harrison told  
Mr. Omond that as of June 1996 the claimant had been delayed about 18 months in commencing  
development of the Westchester II property, i.e., asserting that he was ready to plant, and was ready  
to commence development of blueberry lands in Westchester II in December of 1995. The Board  
has found elsewhere that this assertion is inconsistent with the balance of the evidence: he was at  
that time only completing the refinancing arrangements with FCC which averted the financial  
collapse of the claimant.  
[522] The Board considers that these points, and other aspects of the evidence, have  
a negative effect upon the credibility of the evidence of this witness, and upon the weight which  
should be given it. Accordingly, the Board does not have complete confidence that the numbers  
asserted by the claimant, and relied upon by Mr. Keough, are necessarily accurate.  
[523] Additionally, Mr. Keough=s calculation also assumed the availability of a  
larger number of fully developed blueberry lands throughout the eight year period under study than  
was actually the case.  
[524] The Board concludes that changed assumptions C relating, for example, to  
data (such as the number of acres actually in production with blueberries) or to principles used (such  
as a calculation based upon return on assets, or one based upon return on equity) C can lead to  
significant variations in the discount rate calculated using this approach. In short, the apparent  
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precision of detailed numeric calculations such as those used by Mr. Keough must always C in the  
view of the Board C be tempered with the knowledge that such calculations are, necessarily, founded  
upon a variety of assumptions.  
[525] Thus, the Keough conclusions are based ultimately (as were Mr. Bradley=s)  
upon his personal judgment with respect to the appropriate factors to be used in his calculations, and  
the data to be inserted. The Board saw Mr. Keough as freely, and very professionally,  
acknowledging this C for example, referring to some of his calculated numbers as being Aa bit soft.@  
As an illustration, Mr. Keough=s calculations sometimes involved percentages to a hundredth of a  
decimal place (such as 8.27%), which might, to a reasonable reader, imply a high level of precision  
and accuracy; nevertheless, as Mr. Keough carefully explained, a change in just one assumption  
would mean that the 8.27% figure would become 9.57% (the Board notes that the Board itself has, in  
this decision, used, or sometimes itself calculated, numbers which contain one or more decimal  
places. This has been largely for the purpose of convenience in calculation, and should not be taken  
to imply a high level of confidence on the part of the Board with respect to the precision or accuracy  
of the data). The Federal Court, in Johnson v. The Queen (1981), 22 L.C.R. 133 (Federal Court),  
commented on differing approaches to adjustments to appraisal reports. While the Board is here  
reviewing reports by experts who are not appraisers, and the topic is discount rates, rather than  
market value, it nonetheless considers the following observation by the Court to be relevant to the  
matter at hand:  
Mr. Beaton adopts a more mathematical approach to the adjustment than the other experts  
which, while commendable, does not necessarily yield more accurate final results as the  
subjective element cannot be eliminated.  
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[526] Mr. Keough=s calculation of the industry wide discount rate points to a  
figure, after all adjustments, of 8.27 to 9.57% (the Board notes that these figures, in turn, relate to  
assumptions, among other things, the market value of developed blueberry properties, 9.57%  
referring to an assumed value of $3,000 per acre). One attraction of these industry figures is that, by  
blending a relatively large amount of data from a number of agricultural operations, they reduce the  
probability that a calculation will be skewed to a significant degree by an incorrect figure C  
something which can happen more easily when the data is just drawn from one enterprise, even if its  
financial reports were to be considered absolutely reliable. On the other hand, the Board is mindful  
of Mr. Keough=s comment that he did not include certain costs, such as management, which could  
have reduced this industry wide rate. Moreover, the industry wide rate is not, of course, related only  
to the claimant=s operations.  
[527] Another comparable to consider is the 1995 long-term Canada Bond rate, to  
which both Mr. Keough and Mr. Bradley referred. This rate, taking into account inflation, is 83%.  
Both also referred to the debt rate as a criterion: the claimant=s secured debt with Farm Credit  
Corporation is 8.5%, which yields an inflation-adjusted figure of 5.75%. The years since 1995 have  
seen a steady decline in bond and mortgage interest rates.  
[528] Counsel for the claimant strenuously asserted that in considering the question  
of the appropriate discount rate, the Board should accept that the issue did not revolve around  
Ahypothetical equity investors,@ but the particular asset located at Westchester II East. Counsel for  
the respondent Crown, on the other hand, said, in essence, that the claimant was indeed in a position  
approximating that of a theoretical investor. The lands in question at Westchester II East are not  
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developed lands, which have been cut by a highway, thereby (among other things) meaning that  
preexisting fixed costs, instead of being usefully spread over a previously much larger property, now  
apply to property which is, in effect, much smaller. Instead, the lands in question are, he asserted,  
lands which are available for development but which have not as yet been developed at all. The  
claimant, with its principal, Jim Harrison, is in the blueberry growing business, the land  
development business, the brokerage business, and the custom work business, carrying out work, not  
just in Westchester, but at a number of locations elsewhere in Nova Scotia, and in New Brunswick.  
Asserting a position directly contrary to that of the claimant, counsel for the respondent Crown said  
that the claimant is, indeed, in the position of a theoretical investor:  
. . . The blueberry fields which we are talking about do not exist. This is not a case of  
spreading out pre-existing fixed costs of developed property over smaller landholdings  
following expropriation.  
Harrison is in business. It is in the brokerage business. It contracts out services to third  
parties. It undertakes blueberry operations throughout Nova Scotia and New Brunswick.  
Harrison's can and will make an investment decision about whether to develop these lands. If  
the return will not be high enough, commensurate with the risk, then as a reasonable  
business, Harrison will not proceed. At that point, maybe Harrison would sell its lands or  
maybe it would use them for something else, but it is not proper to think that it has committed  
itself to a development program and has no choice.  
Finding  
[529] In considering the issue of discount rates in the present proceeding, a frequent  
reference was made to the Williams case. Mr. Ryle and Mr. Gervason asserted that a fixed rate of  
2.5% should apply in the present proceeding, calling it the Astatutory rate@. In the view of the  
Board, Williams does not stand for the principle that a 2.5% discount rate must be applied in all  
agricultural expropriation cases. The 2.5% rate referred to in Rule 31.10(2) was characterized in  
Comeau v. Marsman et al., [1981] N.S.J. No. 467, paragraph 23 as being intended  
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. . . to reflect only the difference between interest rates and the rate of inflation. In any given  
case, there could be factors that would indicate that this discount rate would be inappropriate.  
[para. 23]  
[530] The Board also considers that the Court of Appeal=s decision in Corkum v.  
Sawatsky (1993), 126 N.S.R. (2d) 317, means that the 2.5% discount rate referred to in the Civil  
Procedure Rules is not necessarily determinative of all cases. In Corkum, the Court of Appeal, in  
commenting upon Comeau, said:  
What [the Court] said was that there were appropriate cases where the measure to be  
applied was not necessarily the difference between interest rates and the rate of inflation. In  
such cases appropriate evidence could be led. [para. 66]  
[531] In addition to being conscious of the approach taken by the Board to discount  
rates in Williams, the Board in the present matter has been equally conscious of the approach taken  
by the Board in Johnson, and of the reasoning which the Board applied to the discount rate issue in  
that matter. In effect, the Board in that case adopted the evidence of Mr. Ryle and set a general  
discount rate of 2.5% for all losses except those relating to a specialized new activity (raising and  
selling a special species of bees which the claimants were introducing into the province and which  
they felt would be more effective at pollination.  
[532] Having reviewed all of the evidence, the Board finds that there is insufficient  
evidence for it to decide in the present proceeding, on the balance of probabilities, that a general  
discount of 2.5% should be applied in this case. Instead of Mr. Ryle=s approach, the Board prefers  
the more analytical approaches of Mr. Keough and Mr. Bradley. Even though their approaches, and  
their ultimate conclusions, differ significantly from each other, the Board sees them as having  
attempted to, in a logical and objective way, explore the claimant=s circumstances, measure those  
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circumstances against the broader industry data, and reach conclusions. The Board saw Mr. Keough  
and Mr. Bradley as endeavouring to deduce their conclusions, and to present their evidence, in an  
objective and professional manner, avoiding at least any overt appearance of attempting to argue a  
position on behalf of their respective clients. Moreover, in certain aspects of their evidence, both  
witnesses, without hesitation, took positions which might not have been regarded as helpful to their  
respective clients. To give but one example for each, Mr. Keough (having reviewed the actual  
pricing data) adopted a farm gate or grower=s price of 50 cents per pound in the face of Mr. Ryle=s  
claimed 75 cents, and Mr. Bradley, when supplied certain cost figures by counsel for the claimant  
which were not as favourable to the claimant=s situation as industry averages were, adopted the  
industry averages. The Board saw both Mr. Keough and Mr. Bradley as attempting to reach  
conclusions based upon their perception of the facts of this particular case; in contrast, the Board  
ultimately perceived Mr. Ryle=s position as being driven by other factors, including (apart from his  
enthusiasm for the claimant=s cause), his earlier experiences with expropriations in which  
abandonment was successfully argued C abandonment being a concept which, despite the strenuous  
advocacy by Mr. Ryle in support of it, the Board rejects in the present proceeding.  
[533] Mr. Keough notes at pages 6 and 7 of his report that the availability of  
suitable replacement land is a key factor in farm expropriation cases, and that there is a requirement  
that the replacement land be of Asimilar agricultural quality,@ and Aeither contiguous or in close  
proximity to the farming operation effected.@ Mr. Keough goes on to say that the absence of  
replacement land of similar quality and contiguous or in close proximity means that the typical  
claimant, under the theory justifying the use of the 2.5% Arisk free@ rate, does not have the  
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opportunity to feasibly Areinvest@ an award of compensation, thereby generating a return higher  
than the risk free rate. The Board does not disagree with Mr. Keough=s summary of this aspect of  
expropriation theory. Nevertheless, the Board does consider that many aspects of the claimant=s  
operation are not consistent with those found in a typical farming expropriation, of the type  
described (quite accurately, in the Board=s view) by Mr. Keough.  
[534] The circumstance which the Board is examining in the present situation is  
different from the stereotype of a traditional farm expropriation C involving, for example, a 100 acre  
property which is fully developed in crop land, from which (as in the present instance) about 10  
acres is expropriated, but which (unlike the present instance) leaves a house, barns and other storage  
and support facilities in a 10 acre postage stamp which is isolated from the remaining 80 acres of  
crop land by the 10 acre strip expropriated by the highway authority. In the present instance, no  
fixed assets such as house, barn, or storage facilities have been isolated in Westchester II West. The  
home base of the claimant (including Jim Harrison=s house, receiving shed, storage facilities, etc.) is  
many miles away in Southampton. Moreover, Westchester II, far from being the claimant=s only  
property, is merely one of at least 10 different land holdings owned by it at widely scattered  
locations C apart from the properties and activities (including land acquisition, development of  
blueberry lands, and growing of blueberries) carried on by Jim Harrison=s second company, J.C.  
Harrison Limited.  
[535] More specifically, the Westchester II property, part of which was  
expropriated, is not a land upon which Mr. Harrison, or his father, have ever lived, or have ever had  
any barns or, indeed, buildings of any kind: Mr. Harrison=s home, the receiving station where he  
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holds blueberries, the storage facilities in which he keeps his equipment, are all located at  
Southampton, a point nearly 40 miles to the west (as the crow flies) of Westchester II. The claimant  
does not simply grow blueberries, but buys blueberries from other growers (in quantities roughly  
double those actually grown by the claimant itself), and has built and operates a receiving station in  
connection with this work. The claimant does extensive custom work, including not just production  
and harvesting work, but development work as well. The claimant has also had, during the relevant  
period, a significant amount of land of its own available for development. Thus, for example, while  
the Westchester II East property was, according to the evidence, the only property with significant  
wood fibre on it, there were other holdings held by the claimant, the relative desirability (or  
otherwise, such as from a topographical or soil condition point of view) of which the claimant did  
not explore in any detail in evidence.  
[536] Since 1995, the claimant has engaged in development of various of these  
properties, transforming some lands which merely had potential for blueberries into blueberry  
producing land, and improving other lands which were already producing blueberries by bringing  
them up to machinable standards. Moreover, the claimant has, since 1995, undertaken leasing of  
blueberry lands from other owners. Further, unlike the traditional stereotypical 100 acre farm upon  
which a family lives (as described, above, by the Board), the claimant, because of the nature of its  
operations (using its home base at Southampton to operate a variety of properties in other locations),  
has available to it the possibility of acquiring (through lease or purchase) whatever properties it  
considers suitable for its purpose, in whatever location they may be. Mr. Harrison=s approach, an  
approach quite different from the traditional farming model and one which he has clearly been  
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successful at, involves moving workers and equipment from his Southampton home base to widely  
scattered properties.  
[537] Given this mode of operation, the Board finds that the claimant does not share  
the traditional or stereotypical farming model=s need for replacement property which is contiguous  
to, or at least relatively near (i.e., within a few miles), the claimant=s existing operations. In this  
important sense, the claimant is different from the majority of the participants in the blueberry  
industry, and indeed different from most agricultural operations in general. In the view of the Board,  
the claimant=s mode of operation differs in other ways from the majority of the participants in the  
blueberry industry: indeed, the Board notes that counsel for the claimant described the claimant as  
one of the Alarger producers/brokers,@ excluding only Oxford Frozen Foods, which is the biggest  
company of its type in the world. The Board notes that blueberry operators which are both growers  
and brokers themselves comprise only a minority of blueberry operations generally within the  
province, and the claimant is one of the larger of this minority group.  
[538] The Westchester II East property, which was severed from Westchester II  
West by the expropriation of the 9.687 acres of land for the Cobequid Pass Highway, was not an  
established farm in 1995, but simply woodland upon which the claimant was not carrying out  
operations of any sort. The claimant did not, between the time of the expropriation and the time of  
the hearing, carry out any operations on Westchester II East, including even preliminary work which  
might have led to beginning the development of blueberry fields there. Westchester II East is C from  
the point of view of such things as the nature and quality of the land, and the challenges which may  
be inherent in developing blueberry fields in it C a relatively unknown quantity, even to the  
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claimant. That Westchester II East (the area of Westchester II to the east of the right-of-way) is a  
relatively unknown land, even to the claimant, is demonstrated by the fact that its principal, Jim  
Harrison, has traversed it only once, in July of 1998, along with the consultants whom he retained in  
relation to the expropriation. Westchester II East, a tract involving, as the Board has found  
elsewhere, perhaps 725.5 acres, was, in that visit, traversed by Jim Harrison and his advisors in no  
more than five hours, even though it is heavily wooded and far from being level. Lastly, the  
claimant has not chosen to obtain even the roughest of estimates of what costs and other challenges  
would be involved in the construction of the necessary access roads (which Jim Harrison agrees  
would be Akilometres@ in length), as well as the roads on the western and eastern escarpments of the  
West Branch of the Wallace River, not to mention the crossing of it.  
[539] Mr. Keough ultimately suggested a lower discount rate of around 5%, but, at  
one point in his report, he remarked:  
. . . it is logical to expect that complex lost profit forecasts would be subject to large discounts,  
either through a high discount rate or the application of a probability factor and then the  
application of a rate of return more closely related to the investment characteristics of the  
subject business.  
[540] Mr. Bradley suggested that a discount rate in excess of the 15% which he  
eventually adopted could be justified in the present case. Given the evidence before it, however, the  
Board is not persuaded that it should adopt a discount rate as high as 15%. There is a significant  
amount of evidence before the Board indicating that agricultural discount rates (apart from the dairy  
and poultry operations in which Mr. Bradley testified) are frequently assigned lower values than  
that.  
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[541] One benchmark about which the Board received considerable evidence was  
the Alberta expropriation board which uses a maximum of 5% for a discount rate, but which ignores  
capital appreciation (principally, the increase in the value of farmland). Mr. Keough does not agree  
with ignoring this factor, and, for the purpose of his calculations, adopted a capital appreciation  
figure of 2.5%.  
[542] As already discussed above, the industry wide discount rate calculated by Mr.  
Keough is between about 8.25% and 9.5%. Mr. Keough implied nominal cash return on investment  
is 7.77%, at a market value of $3,500 per acre (with a 2,500 pound per acre yield and a field price of  
55 cents); 9.07% with a market value of $3,000 per acre, and the same yield per acre and field price  
assumptions. The Board set the price per acre for the purposes of this proceeding at a lower figure,  
being $2,500 per acre.  
[543] Mr. Keough suggested that the Board has open to it, based upon his  
calculations and opinion, a range of discount rates between 2.5% and 5.9%, with his principal  
emphasis being upon 5%, a figure he deduced with respect to the claimant=s operation themselves.  
Taking into account the evidence, however, the Board considers that Mr. Keough=s calculated rate  
of 5% is, on the balance of probabilities, too low.  
[544] The court in Gardiner Burton remarked that  
The selection of a capitalization rate is always and at best a judgment call . . . [p. 7]  
and the Board sees the present proceeding as being as good an illustration of that  
observation as any. Recognizing once again what it sees as an unavoidable element of  
apparent arbitrariness in choosing a figure from the evidence before it, the Board finds that  
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the evidence before it merits setting the general discount rate in this proceeding at 8%, a  
figure which is around the top of the industry wide discount rate calculated by Mr. Keough,  
a little less than two-thirds the 15% discount rate ultimately advocated by Mr. Bradley, and  
about 3% more than the rate of return on assets which Mr. Keough calculated was justified  
by the claimant=s financial statements.  
[545] In reaching this conclusion, which amounts to an adoption of portions of the  
evidence of two experts, the Board is conscious of the view that it would be committing an error  
were it to be seen as simply substituting its own arbitrary percentage factor for a conclusion deduced  
by an expert through a correct and generally preferred method of appraisal. Thus, in Gardiner  
Burton Agencies Ltd., the Court of Appeal criticized a conclusion reached by the Board in apparent  
contradiction to that made by appraisers. In Gardiner Burton, the experts were appraisers, while  
Mr. Keough and Mr. Bradley are experts of a different sort. The Board, however, considers the  
basic principle referred to in Gardiner Burton as applicable to experts other than appraisers as well.  
The Board notes that Coates & Waqué, in exploring this point at 28-34, concludes  
Where there is a wide discrepancy between the appraisers= evidence, or the Board is not  
satisfied with the appraisal evidence for either side, the Board need not rely on the appraisal  
evidence, but should examine the evidence presented and exercise its own judgment as to  
the compensation to be awarded . . .  
In the present case, Mr. Keough and Mr. Bradley were viewing a similar fact situation, but  
used quite different approaches. The Board is satisfied that in adopting a discount rate of  
8%, it is not merely substituting what was referred to in Gardiner Burton as Aan arbitrary  
percentage factor@ in place of a Agenerally preferred method of appraisal by an appraiser.@  
Instead, the Board has reviewed the evidence of two experts who have provided to the  
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Board their widely diverging opinions with respect to the appropriate discount rate. In  
considering the question of whether it was perhaps legally driven to choose one expert=s  
view or the other=s, the Board has concluded that it neither is so required, nor would it be  
appropriate for it to do so, in the circumstances of this case.  
[546] Should this 8% discount rate apply to all calculations requiring the use of such  
a rate, or should there be exceptions? Mr. Keough=s focus was upon a discount rate which would be  
applied to future matters. At paragraph 94, the claimant=s counsel asserts that Aat the very least@  
the 2.5% rate should be applied to the claim for excess costs for travelling the access road, which  
are, he asserts, Aextraordinary expenses@ which do not contribute to increased revenue; in his  
closing summation at paragraph 98, the claimant=s counsel said that, based on the evidence, the  
Board should apply  
the risk-free rate of 2.5% for the portion of the claim related to the excess costs and the risk  
adjusted rate of 5% for the claims related to the delay in development claim.  
Mr. Bradley, in his evidence, while advocating a 15% discount rate generally, set a 2.5%  
discount rate for past lost profits in relation to the Bogle property, as calculated by Mr. Ryle  
(with certain modification by Mr. Bradley).  
[547] As is explored elsewhere in this decision, the Board considers that Aexcess  
costs,@ in general, are much less certain in this particular proceeding, and in many instances  
essentially unknown, because of deficiencies in the evidence provided by the claimant.  
[548] The Board does consider that a discount rate of 2.5% could, conceivably, be  
applied to compensation which might be payable in relation to past lost profits from the .5 acres of  
Bogle land which were expropriated from the property which the claimant leases from Bogle. The  
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Board, however, has concluded elsewhere in this decision that no compensation is payable in  
relation to any such lost profits, or indeed any other head of damages which might conceivably be  
claimed in relation to the leased Bogle lands. The application of a discount rate to past lost profits in  
relation to the Bogle property is therefore, in the Board=s view, irrelevant.  
[549] The Board determines that the appropriate discount rate to apply in the present  
proceeding to all calculations would be 8%, with the exception of past loss of profits in relation to  
the Bogle property, for which it sets provisionally (given that it sees no valid claim in relation to the  
Bogle lands in any event) a rate of 2.5%.  
XIV PRODUCTION AND HARVESTING COSTS IN DEVELOPED BLUEBERRY  
FIELDS  
[550] The claimant provided, through its counsel, two different sets of harvesting  
and production costs, the first being supplied on October 7, 2002 (Exhibit H-35), and the second  
being provided on December 4, 2002 (Exhibit H-36). The counsel for the claimant characterized the  
December 4, 2002 figures as a Acorrection@ of the information supplied on October 7. Just as with  
the October 7 data, only final figures were provided: there was no disclosure of the underlying  
financial statements or data upon which the numbers were based. In his oral testimony, Mr.  
Harrison affirmed that the December 4, 2002 figures were correct. Counsel for the claimant asks  
that these figures be the ones applied by the Board in dealing with any compensation arising from  
the delay of development claim. The production costs of the October 7 and December 4 letters are  
consolidated in the table below:  
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Production Costs  
October 7, 2002 Letter  
Pruning (Burning)  
December 4, 2002 Letter  
Pruning (Mowing)  
$130  
$40  
25  
25  
45  
80  
70  
20  
Fertilization  
25  
20  
30  
80  
70  
20  
Fertilization  
Insect Control  
Insect Control  
Disease Control  
Weed Control  
Disease Control  
Weed Control  
Pollination (1 hive/acre)  
Miscellaneous Costs  
Pollination (1 hive/acre)  
Miscellaneous Costs  
TOTAL:  
$375  
TOTAL:  
$305  
Harvesting and Handling Costs  
per lb.  
1995 only  
per lb.  
1997 to 2001  
per lb.  
Harvesting & Supervision  
$ 0.17  
0.01  
Harvesting and  
Handling Costs  
$ 0.10  
$ 0.6  
0.01  
Equipment & Transportation  
Mechanical  
Harvesting  
0.01  
TOTAL  
$ 0.18  
TOTAL  
$ 0.11  
$ 0.07  
[551] Counsel for the claimant says that the figures supplied by Mr. Harrison are  
consistent with those he supplied to Mr. Omond, according to Mr. Omond=s notes in June of 1996,  
and urges that the production and harvesting costs set out in Exhibit H-36 be adopted by the Board.  
Counsel for the claimant urges this in preference to other parts of the evidence, including material  
appearing in the report by Mr. Keough (one of the experts retained by the claimant). He  
characterizes the production and harvesting costs contained in that report as having been derived  
from the industry survey, and says that the claimant=s actual costs would be less (as Mr. Harrison  
himself likewise claims they would). Acceptance of this point of view would, as counsel for the  
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claimant acknowledges, mean that higher profit margins would be attributed to the claimant than  
would be the case if the figures used in the Keough Report were adopted.  
[552] Mr. Keough obtained production and harvesting costs (including handling and  
transportation) from discussions with McIsaac and Associates in December of 2002. Mr. Keough  
said that Mr. McIsaac had been a private consultant to blueberry farmers for a couple of years prior  
to Mr. Keough consulting him. Mr. Keough prepared his report after extensive consultations not just  
with Mr. McIsaac, by with Mr. Harrison. Nevertheless, Mr. Harrison appeared to attempt to  
distance himself from at least some of the Keough data in the course of his own testimony. The  
following table appears in the Keough Report:  
Keough Report - Appendix B:  
Estimated Costs per lb. at indicated yield/acre  
Yield/Acre  
1,000  
1,250  
1,500  
1,750  
2,000  
2,250  
2,500  
2,750  
3,000  
3,250  
3,500  
3,750  
4,000  
4,250  
Production  
$0.4120  
$0.3296  
$0.2747  
$0.2354  
$0.2060  
$0.1831  
$0.1648  
$0.1498  
$0.1373  
$0.1268  
$0.1777  
$0.1099  
$0.1030  
$0.0969  
Harvesting  
$0.1375  
$0.1375  
$0.1275  
$0.1275  
$0.1175  
$0.1175  
$0.1175  
$0.1175  
$0.1175  
$0.1175  
$0.1175  
$0.1175  
$0.1175  
$0.1175  
Total Cost Per Lb.  
$0.5495  
$0.4671  
$0.4022  
$0.3629  
$0.3235  
$0.3006  
$0.2823  
$0.2673  
$0.2548  
$0.2443  
$0.2352  
$0.2274  
$0.2205  
$0.2144  
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[553] The production and harvesting costs developed by Mr. Keough are all in cents  
per pound. With respect to harvesting and handling costs, the claimant asserted on October 7, 2002,  
that these were 18 cents per pound (17 cents for harvesting and supervision, and 1 cent for  
equipment and transportation); in its December 4, 2002 revision, these became a total of 11 cents per  
pound for 1995 only, and 7 cents per pound for 1997 to 2001. Mr. Keough=s harvesting costs per  
pound for 2,000 pounds per acre on up to 4,000 pounds per acre were 11.75 cents per pound. The  
harvesting and handling costs for the industry which Mr. Bradley obtained were 10 cents per pound,  
from a yield of 2,000 pounds per acre through to a yield of 2,500 pounds per acre (which was as high  
as the data he presented in his report went). The combined production and harvesting costs  
developed independently by Mr. Keough and Mr. Bradley, according to Mr. Keough and Mr.  
Bradley, are, very roughly, similar: Mr. Keough=s figure for 2,500 pounds per acre is $706 per acre  
(2,500 pounds x $.2823), and Mr. Bradley=s figure for 2,500 pounds per acre is $625 per acre.  
[554] Mr. Omond=s notes of his meeting with Mr. Harrison appear to say that Mr.  
Harrison told him that his Acost to produce@ was A25 to 30 cents/pound.@ If the Acost to produce@  
referred to by Mr. Omond was both production and harvesting, and if the lower of the two figures  
were used, being 25 cents, this would mean a total cost per acre of $625, at an assumed production  
rate of 2,500 pounds per acre, $688 at an assumed production rate 2,750 pounds per acre, and $750  
at an assumed yield per acre of 3,000 pounds.  
[555] All of these figures are higher, in some instances, much higher, than the  
revised total production costs, as eventually asserted in this proceeding by the claimant in Exhibit H-  
36. The costs asserted by the claimant in the revised figures in the letter of December 4, 2002 (H-  
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36), were $305 per acre for production costs, together with 7 cents per pound for harvesting and  
handling costs. 7 cents per pound is, on a per acre basis, $175 for 2,500 pounds per acre,$192.50 for  
2,750 pounds per acre, $210 for 3,000 pounds per acre, and $280 at 4,000 pounds per acre. This  
yields a range of approximately $480 (for 7 cents per pound at 2,500 pounds per acre) up to $585 per  
acre (at 4,000 pounds per acre). The figure of $480 per acre (for 2,500 pounds per acre) is  
significantly less than that developed by either Mr. Bradley or Mr. Keough ($625 per acre and $706  
per acre, respectively, at an assumed yield rate of 2,500 pounds per acre), and with the industry-wide  
figures found elsewhere in the evidence, such as the 1994 and 2000 Situation Reports.  
[556] Mr. Bradley used an average production cost figure of $375 per acre. This  
was the same as the production cost originally provided by the claimant (although subsequently  
modified in the claimant=s counsel=s letter of December 4, 2002, to $305 per acre). On this point,  
the Bradley Report notes at Schedule 4A:  
Industry surveys indicate that average production costs are approximately $375 per acre for  
farming operations that utilize the practices of flail mowing and mechanical harvesting (by  
contrast farms using burning, rather than mowing, and which harvest by hand raking, report  
average production costs per acre of $445).  
The Board notes that the figure of $375 per acre, which Mr. Bradley reports as an industry  
average, is for mechanized operations, with more traditional methods costing more ($445).  
The more traditional methods were used by the claimant exclusively in 1995 and in some  
of its properties in the years since.  
[557] Mr. Bradley=s total figure for production, management, harvesting and  
handling, for a field yielding 2,500 pounds per acre (the maximum to which his table goes) is $625  
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per acre ($375 per acre for production and management, and $250 per acre for harvesting and  
handling, at 10 cents per pound and an assumed yield of 2,500 pounds per acre).  
[558] This figure of $625 per acre for a yield of 2,500 pounds per acre can be  
compared to Mr. Keough=s table which shows a total of $705.75 per acre ($412 per acre for  
production costs and $293.75 per acre for harvesting costs).  
[559] The 2000 Situation Report shows at Table IV the following production,  
harvesting and handling costs using flail mowing and mechanical harvesting:  
2000 Situation Report: Table IV - Variability of Total Production and Harvesting Costs Per Pound Due to  
Yield Variations (Based on Table III Cost Figures)  
Yield  
Production Cost  
Harvesting and  
Handling Costs*  
Total Cost  
49.54/lb  
42.04/lb  
36.04/lb  
32.44/lb  
28.84/lb  
26.74/lb  
25.04/lb  
23.64/lb  
22.54/lb  
Cost Per Acre  
(yield x total cost)  
1,000  
lbs/acre  
37.5 4/lb  
($375/acre)  
124/lb  
124/lb  
114/lb  
114/lb  
104/lb  
104/lb  
104/lb  
104/lb  
104/lb  
$495.00  
$525.00  
$540.00  
$567.00  
$576.00  
$600.75  
$625.00  
$649.00  
$675.00  
1,250  
lbs/acre  
30.0 4/lb  
($375/acre)  
1,500  
lbs/acre  
25.0 4/lb  
($375/acre)  
1,750  
lbs/acre  
21.4 4/lb  
($375/acre)  
2,000  
lbs/acre  
18.8 4/lb  
($375/acre)  
2,250  
lbs/acre  
16.7 4/lb  
($375/acre)  
2,500  
lbs/acre  
15.0 4/lb  
($375/acre)  
2,750  
lbs/acre  
13.6 4/lb  
($375/acre)  
3,000  
12.54 /lb  
lbs/acre  
($375/acre)  
* Harvesting and handling costs have been varied from 124 to 104 to reflect the influence of good yields in lowering  
harvesting rates.  
[560] Table II from the 2000 Situation Report shows production costs, harvesting  
and handling costs, using burning and hand harvesting:  
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2000 Situation Report: Table II - Variability of Total Production and Harvesting Costs Per Pound Due to  
Yield Variations (Based on Table I Cost Figures)  
Yield  
Production Cost  
Harvesting and  
Handling Costs  
Total Cost  
66.54/lb  
56.64/lb  
49.74/lb  
44.44/lb  
40.34/lb  
36.84/lb  
34.84/lb  
33.24/lb  
31.84/lb  
Cost Per Acre  
(yield x total cost)  
1,000  
lbs/acre  
44.5 4/lb  
($445/acre)  
224/lb  
214/lb  
204/lb  
194/lb  
184/lb  
174/lb  
174/lb  
174/lb  
174/lb  
$665.00  
$707.50  
$745.50  
$777.00  
$806.00  
$828.00  
$870.00  
$913.00  
$954.00  
1,250  
lbs/acre  
35.6 4/lb  
($445/acre)  
1,500  
lbs/acre  
29.7 4/lb  
($445/acre)  
1,750  
lbs/acre  
25.44/lb  
($445/acre)  
2,000  
lbs/acre  
22.3 4/lb  
($445/acre)  
2,250  
lbs/acre  
19.84/lb  
($445/acre)  
2,500  
lbs/acre  
17.84/lb  
($445/acre)  
2,750  
lbs/acre  
16.2 4/lb  
($445/acre)  
3,000  
14.84 /lb  
lbs/acre  
($445/acre)  
* Harvesting and handling costs have been varied from 224 to 174 to reflect the influence of good yields in lowering  
harvesting rates.  
[561] A review of this table shows that harvesting and handling costs decline as  
yield rates increase, with costs being lower for flail mowing and mechanical harvesting, and higher  
for the more traditional methods (burning and hand harvesting) in the 1994 Situation Report.  
[562] If one assumes the use of hand methods in 2000, the cost per acre is $870  
(34.8 cents x 2,500 pounds).  
[563] By comparison, the 1994 figures show $585 per acre for mechanical methods  
(23.4 cents per pound x 2,500 pounds), with hand methods (which were exclusively in use by the  
claimant in 1995) costing $825 per acre (33 cents x 2,500 pounds).  
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[564] The Board sees the total figures developed by Mr. Keough and Mr. Bradley  
($625 and $705.75 per acre at 2,500 pounds per acre for Mr. Bradley and Mr. Keough, respectively;  
$735 per acre at an assumed yield rate of 2,750 pounds, according to Mr. Keough) as being  
generally consistent with those in the 1994 and 2000 Situation Reports. The Situation Report  
prepared by Mr. Sibley in 1994, and the 2000 Situation Report, both contain industry figures for  
production, harvesting and handling. In the 1994 report, Mr. Sibley remarks:  
These figures are considered . . . realistic even though costs do vary considerably among  
different growers.  
[565] It was argued on behalf of the claimant that the Bradley and Keough figures  
were all based upon work being done on a custom basis, i.e., did not include costs of work done by  
growers who themselves carried out harvesting work. Having considered all of the evidence, the  
Board does not accept this assertion. The Board perceived there to be a reasonably high degree of  
internal consistency within the evidence of both Mr. Keough and Mr. Bradley, and a reasonably high  
degree of consistency between the evidence of the two of them with respect to the matters currently  
under consideration by the Board, including the raw data which both gathered for purposes of their  
respective analyses. For reasons referred to elsewhere, as well, the Board accords a high degree of  
credibility to both Mr. Keough and Mr. Bradley.  
[566] In the view of the Board, it could reasonably adopt either Mr. Bradley=s  
figure of 10 cents per pound or Mr. Keough=s figure of 11.75 cents per pound. The lower price per  
pound suggested by Mr. Bradley is obviously of benefit to the claimant. Given the spirit, as the  
Board sees it, of such cases as Dell, the Board sets harvesting and handling costs at the figure  
suggested by Mr. Bradley, i.e., 10 cents per pound.  
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[567] The Board is conscious that the Situation Report for 1994 and 2000 both note  
the wide variation in grower=s costs of operation, and was conscious of this fact in choosing to  
reject the claimant=s revised production and harvesting costs per acre.  
[568] The production costs for the claimant as represented in H-36, of $305 per  
acre, which are said to be based upon the claimant=s actual experience, are significantly below those  
levels referred to by the preponderance of the balance of the evidence. The claimant maintains that  
its costs are lower because it has its own equipment and can carry out the work itself. In the view of  
the Board, this would also be true of at least certain of the persons upon whom industry wide figures  
are based. The Board further notes that the production cost figure originally supplied by the  
claimant was $375 per acre. The Board notes that the situation report figures (H-26 and H-27) are  
$375 per acre for the year 2000, and $335 per acre for 1994. The expropriation was in 1995.  
[569] Taking into account the inconsistencies in data found in financial reports and  
other data generated by the claimant on various matters, the changes in data on this specific point  
provided by the claimant, the fact that the figure originally supplied by the claimant was $375 per  
acre, that $375 per acre is the stated industry-wide figure for mechanized operations in the year  
2000, that Mr. Sibley himself described such figures as Arealistic@ in his 1994 report, and the other  
matters referred to above (including, in particular, the evidence of Mr. Keough and Mr. Bradley), the  
Board considers that $375 per acre for production and management costs is a rate which is,  
according to the preponderance of the evidence (with the single exception being the revised  
information supplied by the claimant as a part of H-36), the minimum production cost per acre  
which it can reasonably set. While it considers that it could, particularly given that none of the  
claimant=s operations were mechanized in 1995, apply a somewhat higher rate, the Board, again,  
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mindful of what it perceives as the spirit within such cases as Dell and Turner Drake, sets the cost  
per acre for production and management at $375 per acre. At an assumed average yield of 2,500  
pounds per acre (the figure adopted by the Board elsewhere in this decision), this is a cost per pound  
for production and management of 15 cents (as opposed to Mr. Keough=s production cost at an  
assumed yield of 2,500 pounds of 15.48 cents).  
[570] Viewing the above two findings in the context of the Board=s findings  
elsewhere in this decision with respect to average yield per acre (2,500 pounds) and price per acre  
(buyer=s price per acre, being the total of the farm gate price and the brokers= premium) of 60 cents,  
the Board finds that: expressed in per pound, rather than per acre terms, the production and  
management costs are 25 cents per acre, slightly less than the 28.23 cents per pound which appears  
in Appendix AB,@ of the Keough Report.  
[571] In summary, the Board rejects the claimant=s assertion of production costs of  
$305 per acre and 7 cents per pound for harvesting and handling costs as being inconsistent with the  
preponderance of the evidence. It sets, at a yield rate of 2,500 pound per acre:  
!
!
!
the production and management costs at $375 per acre;  
the harvesting and handling costs at 10 cents per pound;  
the average production, management, and harvesting and handling costs at 25 cents  
per pound.  
[572] The Board recognizes that the expenses for the year 2000 are higher than  
those for 1994, but it also notes that in 1995, no mechanized operations (which are significantly  
cheaper) were being carried on at all by the claimant. The Board will adopt the 2000 figure for  
mechanized forms of production and harvesting as applicable for all purposes, including 1995. The  
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figure of 25 cents per pound, or a cost per acre of $625, the figure adopted by the Board based on the  
evidence before it, at a yield per acre of 2,500 pounds, is the same as that used in the 2000 Situation  
Report for mechanized methods of production and harvesting.  
XV  
ADDITIONAL TRANSPORTATION COSTS  
Additional Costs of Trucking Hardwood, Logs, Studs and Pulp Because of  
Additional Travel Time Over Government Land Access Roads  
[573] The Athol Report contains calculations by Ms. Haylock of additional costs  
associated with trucking hardwood, logs, studs and pulp arising from the additional travel time over  
the government land access roads. Because the persons providing the service bill on a one-way rate  
only, the figure which Ms. Haylock uses is not 11 kilometres (the additional round trip arising from  
the use of the government land access roads), but 5.5 kilometres (a one-way trip) along the  
government land access roads. The Board reproduces below one of her calculations, that relating to  
hardwood, and the transportation of it a distance of 275 kilometres to Mirimachi, New Brunswick:  
The Department of Transportation did construct a new access road for landowners to access  
their properties. Unfortunately this leaves Mr. Harrison with an extra 5.5 km to travel, to get to  
his woodlot.  
The Department does not keep this road open in the winter months which happens to be the  
time of year that Mr. Harrison does his harvesting. This results in Mr. Harrison having to  
maintain the road throughout the harvesting period. It also affects the cost of trucking his  
wood.  
For Example:  
HARDWOOD  
275 km to Miramichi  
Base Rate  
$2.68/tonne  
Loading$1.36/tonne  
TOTAL $4.04/tonne  
Per Km Rate  
$0.0554/km - Chips  
$0.0598/km - Roundwood  
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4.04* (275*0.0598) = $66.44/tonne  
$66.44 / 1.95 tonnes/cord = 34.07/cord  
34.07/cord / 275 km = 0.12/cord/km  
If the extra distance to be travelled was 5.50 km due to the access road the total cost per  
cord would be $0.12/cord/km * 5.50 km = $0.66/cord, therefore instead of being $35.00/ cord  
to truck hardwood to Miramichi it would be $35.66/cord. If there are 17,000 cords of  
hardwood it would cost an extra $11,220.00 at 1999 trucking rates.  
LOGS  
280 km to Newcastle  
Base Rate  
Loading  
$2.68/tonne  
$1.36/tonne  
TOTAL $4.04/tonne  
Per Km Rate  
$0.0554/km - Chips  
$0.0598/km - Roundwood  
4.04* (280*0.0598) = $67.65/tonne  
$67.65 / 1.79 tonnes/cord = 37.79/cord  
37.79/cord / 280 km = 0.135cord/km  
If the extra distance to be travelled was 5.50 km due to the access road the total cost per  
cord would be $0.135/cord/km * 5.50 km = $0.74/cord, therefore instead of being $39.13/  
cord to truck logs to Newcastle it would be $39.87/cord. If there are 626 cords of logs it would  
cost an extra $463.24 at 1999 trucking rates.  
STUDS  
130 km to Sussex  
Base Rate  
Loading  
$2.68/tonne  
$1.36/tonne  
TOTAL $4.04/tonne  
Per Km Rate  
$0.0554/km - Chips  
$0.0598/km - Roundwood  
4.04* (130*0.0598) = $31.41/tonne  
$31.41 / 1.79 tonnes/cord =17.55/cord  
17.55/cord / 130 km = 0.135cord/km  
If the extra distance to be travelled was 5.50 km due to the access road the total cost per  
cord would be $0.135/cord/km * 5.50 km = $0.74/cord, therefore instead of being $35.20/  
cord to truck studs to Sussex it would be $35.94/cord. If there are 626 cords of studs it would  
cost an extra $463.24 at 1999 trucking rates.  
PULP  
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280 km to Newcastle  
Base Rate  
$2.68/tonne  
Loading$1.36/tonne  
TOTAL $4.04/tonne  
Per Km Rate  
$0.0554/km - Chips  
$0.0598/km - Roundwood  
4.04* (280*0.0598) = $67.65/tonne  
$67.65 / 1.79 tonnes/cord = 37.79/cord  
37.79/cord / 280 km = 0.135cord/km  
If the extra distance to be travelled was 5.50 km due to the access road the total cost per  
cord would be $0.135/cord/km * 5.50 km = $0.74/cord, therefore instead of being $35.00/  
cord to truck pulp to Newcastle it would be $35.74/cord. If there are 1252 cords of pulp it  
would cost an extra $926.48 at 1999 trucking rates.  
When looking at the above scenarios which are based on figures from Mr. Harrison's woodlot  
the total additional cost would be $13,072.96 at 1999 trucking rates. See Appendix 4.  
This harvesting would be spread over the next 20 years and trucking rates are expected to  
increase over time. Also the woodlot has the potential to continue growing therefore the  
volumes will also increase.  
Counsel for the respondent notes that the base rate and loading rate contained in Ms.  
Haylock=s calculations are, in effect, fixed costs, i.e., ones which do not vary with distance,  
and are chargeable in any event. He argues, in effect, that the rate which should apply to  
the trucking of hardwood, logs, studs and pulp should not be calculated based upon the  
average cost per kilometre, but the marginal cost per kilometre, i.e., the additional cost of  
travelling an additional kilometre. A marginal cost for any item will always be less than the  
average cost, in which fixed costs are taken into account. The Board does not see the  
issue of average versus marginal cost as being as straight forward in connection with  
equipment actually operated by the claimant. With respect to the matters of trucking by  
third parties, using a pricing schedule of the type referred to above, however, the Board  
accepts the submissions of counsel for the respondent on this point, and concludes that the  
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marginal rate is a more accurate measure of the additional cost per cord (whether it be for  
hardwood, logs, studs or pulp) arising from the additional 5.5 kilometres of travel.  
[574] With respect to hardwood, the Board calculates the marginal cost by  
multiplying $.0598 per kilometre (the higher of the two hardwood rates), for a distance of 5.5  
kilometres, which equals $0.3289, or, very roughly, 33 cents per cord instead of 66 cents per cord as  
calculated by Ms. Haylock. Adopting Ms. Haylock=s estimate of 17,000 cords of hardwood which  
can potentially be removed from Westchester II East, would result in the claimant incurring an  
additional (arising from having to travel the additional distance over the government land access  
roads) $5,586.20 in trucking costs to remove this amount of hardwood. The calculations are as  
follows:  
$0.0598 x cord/kilometre x 5.5 = $0.3289  
17,000 cords x $0.3289/cord = $5,586.20  
[575] The Board applies similar calculations to logs, studs, and pulp. The Board=s  
recalculation for 626 cords of logs yields a figure of $205.89 (0.0598 x 626) in place of $463.24 for  
both logs and studs. For pulp, assuming 1,252 cords of pulp, the additional cost would be $411.78,  
instead of the $926.48 calculated by Ms. Haylock.  
[576] The Board notes that these calculations were not done in the course of the  
hearing, nor did the Board receive any submissions showing the calculations from either counsel.  
They represent, instead, the Board=s calculations, having accepted the submission of counsel for the  
respondent with respect to this point.  
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Snow Ploughing  
[577] Ms. Haylock=s figures for snow ploughing will be ignored by the Board: the  
Board finds that if snow ploughing is required by the corporate claimant, this will, on the evidence  
before the Board on the balance of probabilities, be provided free of charge by the Crown. If the  
Board had found otherwise, it notes that Ms. Haylock=s grader calculation, which indicates an  
additional $150 per year relating to the 11 kilometre round trip, assuming five snowfalls in which  
ploughing occurs, appears to be based upon an assumption that the grader is already present at the  
site. She appears to have made no allowance for the cost of getting the grader to Westchester II; on  
the evidence before it, the Board makes no finding as to that cost. The alternative figure available  
from Ms. Haylock is the operation of a forwarder owned and operated by Mr. Harrison at  
Westchester II, for which she calculates a figure of $240 per year (again, over 20 years). For  
purposes of any calculation involving snow removal (should such be deemed necessary upon  
appeal), the Board adopts $240 per year.  
Floating  
[578] With respect to floating costs, Ms. Haylock calculates the cost of transporting  
one piece of harvesting equipment, such as moving a forwarder into the site at the beginning of a  
harvesting period and out at the end of it. This is calculated by Ms. Haylock to be $47.52. She  
assumes that the float truck will operate at 30 km/h on the woods roads and that an additional 11  
kilometres will be needed to travel when delivering equipment to the woodlot, or an additional 22  
minutes; float trucks are charged out at $1.08 per minute, yielding $23.76 per round trip:  
22 minutes x $1.08/minute = $23.76 per round trip  
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She notes that this is for one piece of harvesting equipment only, and that it does not include other  
harvesting, land clearing, or road building equipment which might need to be floated in. The  
claimant has provided no information whatever with respect to what costs and what types of  
equipment might be involved in its building the roads which it says it intends to build. Mr. Ryle in  
his report (page 13) takes the Athol figure and asserts that:  
The additional cost of floating equipment into the area are estimated as $ 23.76 per trip. It is  
expected that for each 25 acres at least 6 floatings would be required to place and retrieve all  
the equipment involved  
Additional floating cost 6 a 23.76  
$142.56 per 25 acre block  
[579] The Board notes that Mr. Ryle does not say what the floating costs are in  
connection with, i.e., what Athe equipment involved@ is intended to be used for. The passage just  
quoted by the Board appears in his report between transporting wood products and developing  
blueberry lands.  
[580] Mr. Ryle in his report (page 13), says that the transportation costs calculated  
by Athol should be doubled. The Board does not accept his justification for this. Moreover, as  
noted, the Board calculates the total additional cost, using Ms. Haylock=s assumptions, with the  
marginal cost adjustment indicated by the Board (in place of her average cost adjustment) for  
trucking of hardwood, logs, studs, and pulp as $6,414.86, in place of her $13,072.96. Mr. Ryle in  
his Atransporting wood products@ section, assumed an area of 742 acres. If the Board uses that area,  
one obtains a per acre cost of $8.65, or ($8.65 x 25) $216.25 for each 25 acre block. A 25 acre block  
is the measure used by Mr. Ryle at page 13 of his report. Thus, using Ms. Haylock=s assumptions, a  
marginal cost per acre for trucking of hardwood, logs, studs and pulp is $216.25.  
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[581] Mr. Ryle=s reference to Aat least 6 floatings@ might be taken to mean various  
things, such as three deliveries at the beginning of the work on the 25 acre block, and three  
retrievals. It may well be that three pieces of equipment are needed to do the work C whatever it  
was C that Mr. Ryle was contemplating would be done upon 25 acres. If that were so, however, the  
machinery, once having been floated to the site, would then be available, without further floating, to  
do work on the next 25 acres. The assumption, generally (although not with complete consistency)  
throughout Mr. Ryle=s report appears to be that whatever equipment is being used in Westchester II  
East (whether for development work, or for such activities as harvesting), and wherever it might be  
located therein, it would be returned to at the end of each working day to a storage facility, which  
Mr. Ryle hypothesizes would be in Westchester II West. The Board notes, for example, that, in  
referring to Adeveloping blueberry lands@ at the bottom of page 13 of his report, Mr. Ryle remarks  
that:  
In order to evaluate the number of trips required it is assumed that equipment would be  
returned to the storage facility at the end of each working day with the following assumed  
rates of work . . .  
As the Board has found elsewhere, it rejects the Ryle assertion of the need for a storage  
facility and further rejects the notion that, inconsistent with (it seems) how the claimant  
carries on its operations anywhere else, it would not simply leave equipment which is heavy  
and expensive to move at the spot in the field where it was being used at the end of the  
day, and resume using it there at the beginning of the following day.  
[582] At page 14, referring to AProductive Blueberry Lands,@ Mr. Ryle postulates  
10 days per 10 acre unit over two years, or five days per year. He then assumes a round trip each  
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day for the tractor to go back from wherever it may located (which, given that Westchester II East  
may stretch from a minimum of 3 kilometres to perhaps 5 kilometres to the east), if one accepts his  
approach, be a significant additional trip indeed, i.e., much in excess of the 11 kilometres round trip  
attributable to the government land access road). This works out to an additional travelling cost for  
this equipment alone, according to Mr. Ryle=s calculation, of $37.50 per acre per year. As already  
noted in the Board=s discussions with respect to credibility, he was challenged on this, an error in  
calculation pointed out, and his response was not to reduce his calculated figure accordingly, but to  
create a new hypothesis involving an alleged need for a more expensive tractor, and an alleged  
necessity to reduce the assumed speed from 22 km/h to 15 km/h. At the same time in making this  
new hypothesis, he introduced a new category of cost to which he had not previously referred:  
. . . additional costs of transporting berries (2 tons per acre = one half trip for a 5 tonne truck)  
the cost to which at $1 per kilometre is $11/2 = $5.50.  
[583] The Board rejects the need for any trips to return the tractor and necessary  
equipment to a nominal Ahome base@ (which the Board has found does not exist) in Westchester II  
West until whatever work was being done upon the site is complete. That, the Board finds, is the  
practice followed by the claimant elsewhere, and the Board finds that, if the hypothesized  
development were to occur, a similar approach would be followed here.  
[584] As already noted, the Ryle Report claims that 25 acres of woodland with  
blueberry potential would be developed each year in the first six years, together with an additional  
25 acres of woodland without blueberry potential in each of those years. In the seventh year and  
thereafter, only 25 acres of woodland with blueberry potential would be developed each year, i.e.,  
the Ryle Report does not refer to any timbering occurring. The Athol Report, on the other hand,  
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assumes, in its calculation of the total value of wood on the property, that the entire 742 acre  
woodlot (using the area assumption which she and Mr. Omond were both instructed to use) is to be  
valued for stumpage, with calculations of costs being provided in relation to the transportation of  
same.  
[585] Before leaving the subject of Mr. Ryle=s approach to the movement of  
tractors and other equipment, Mr. Ryle insisted that equipment would be needed to be returned from  
Westchester II East at the end of each working day to Westchester II West, and that, moreover, a  
security building needed to be constructed there to store the equipment in part because of security  
issues and in part because of the approach which he considered should be taken to the development  
of the overall property. The Board has rejected his assumption (which was an important driver of  
the costs foreseen by Mr. Ryle) that equipment needed to be returned from Westchester II East to  
Westchester II West daily. If the Board had accepted his assumption, however, the Board would still  
have found his cost assumption to be puzzling, as it relates only to the additional travel distance  
involved in the government land access road and Westchester Road to get from Westchester II East  
to Westchester II West. If indeed the need for a security building was driven at least in large part by  
the alleged increased amount of vandalism, then not just the distance over the government land  
access road and Westchester Road should have been chargeable each day C but the trip from  
wherever the vehicle was in Westchester II East, westward over the Westchester II East lands to the  
government land access road and the Westchester Road, and thence to Westchester II West, would  
arguably have been chargeable. To put it another way, Mr. Ryle=s report maintains that 60% of the  
new security building which his report says is necessary arises from the security issue. If that were  
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the case, and if it were indeed true that equipment needed to be returned to the security building at  
the end of each working day, then the entire trip, from the considerable distance to the east in  
Westchester II East in which the bulk of the blueberry fields hypothesized by Mr. Ryle would be  
developed, would be an expense arising from the security issues. As such, one would think that the  
correct additional to charge, if one were to accept Mr. Ryle=s model, would not be a round trip of 11  
kilometres, but a round trip of significantly longer than that.  
Speed on Woods Roads  
[586] The Board received a range of evidence concerning likely speeds on woods  
roads. The assumed speed of vehicles using the government land access roads would have relevance  
to a determination of excess costs arising from travel time for vehicles going from Westchester II  
West to Westchester II East (over the Westchester Road and government land access roads) for the  
purposes of development (including cutting of timber), production, or harvesting.  
[587] Mr. Bieren referred to travelling in his car the length of Government Land  
Access Road No. 6 and No. 7 at a speed of 60 km/h with no problem. He commented, in relation to  
the proposed access road, which has a turn of a little under 90 degrees as it goes over the proposed  
river crossing to the West Branch of the Wallace River, that he thought this turn Aextreme@ for a 50  
km/h speed (noting its 80 m radius, with his department considering a 90 m radius to be the limit for  
a 50 km/h speed). In response, Mr. Sobey suggested that the access road would not be travelled at  
50 km/h, but Amore like@ 30 km/h.  
[588] Mr. Harrison (who had reviewed the Ryle Report at the time of its  
preparation) said that speeds on woods roads are typically 20 to 25 km/h for the types of equipment  
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which he would use in the roads he proposes to build. Mr. Harrison said that if conditions warranted  
it, speeds of up to 50 km/h might be used, but never a speed in excess of that.  
[589] Ms. Haylock has extensive knowledge and experience in the use of woods  
roads, and the operation on them of vehicles and equipment relating to the harvesting of wood fibre.  
At least for float trucks (which are used for transporting heavy equipment, such as excavators)  
travelling on woods roads, she assumed a speed of 30 km/h; she assumed a speed of 20 km/h for a  
grader ploughing snow, for the purposes of her report.  
[590] The Ryle Report does not state a speed, but at page 14 assumes (according to  
Mr. Ryle=s oral evidence) for the purpose of certain calculations an average speed [for a tractor] of  
22 km/h. After participating in a prehearing discovery in December of 2003, however, Mr. Ryle  
reduced his assumed speed from 22 km/h to 15 km/h. He did this after being told, during the  
discovery, of a calculation error in his report which had, incorrectly, nearly doubled the dollar value  
of his claim for a particular item ($37.50 per 30 minute round trip). According to the evidence given  
by Mr. Bradley, correcting the column affected by the error would reduce the Ryle claim for excess  
cost, before the application of any discount rate, from approximately $240,000 to approximately  
$160,000.  
[591] After learning of this error, Mr. Ryle talked to Mr. Harrison. Mr. Ryle then  
changed two assumptions, the first with respect to vehicle speed, and the second with respect to the  
horsepower of the tractor which would be needed. These changes had the effect of largely offsetting  
(when taken into account with the an additional charge for hauling blueberries in a five ton truck,  
which had never appeared in Mr. Ryle=s report before) the reduction to the claim for excess costs  
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necessitated by correction of the calculation error in his report. He reduced the assumed speed from  
22 km/h to 15 km/h, as already noted; he further assumed an 85 horsepower tractor in place of a 75  
horsepower tractor. He said an 85 horsepower tractor was more expensive to operate than a 75,  
although Ms. Haylock=s evidence included a reference to rental rates for tractors which show the 75  
to 85 horsepower range as being the same. He justified the alleged necessity of the more powerful  
tractor by referring to the steepness and condition of the government land access road, but also  
simply to this being the type of tractor which Mr. Harrison told him he now had. Mr. Ryle justified  
his use of an assumed reduced speed of 15 km/h with two reasons: he referred, first, to Mr. Harrison  
having told Mr. Ryle that he agreed with reducing the speed from 22 km/h to 15 km/h; second, Mr.  
Ryle referred to road steepness and the intersection with the Westchester Road (referring to Mr.  
Harrison, Mr. Ryle said Athis is a very steep piece of the access road, and Mr. Harrison said that to  
be safe, you would need the extra power@). He did not otherwise justify the reduction C he did not  
revisit the government land access roads to evaluate horsepower needs, much less do any informal  
testing of speed or horsepower requirements upon them.  
[592] The Board sees Mr. Ryle=s references to the purported necessity of tractors,  
and, in particular, 85 horsepower tractors, and the costs of operating this type of machinery, to be  
illustrative of certain of the weaknesses which the Board perceives in his evidence; in particular, the  
Board sees the change in evidence just described as having a negative effect upon his credibility.  
The Board will explore the matter of 75 and 85 horsepower tractors in more detail below. For the  
moment, the Board finds that the speed for operation of vehicles on the government land access road  
and the woods roads should be set at 30 km/h. Mr. Ryle=s original speed of 22 km/h was reasonably  
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consistent with the speeds mentioned by Mr. Harrison. Mr. Ryle=s speed of 15 km/h is less than  
anyone else=s speed. The Board sees a 60 km/h speed mentioned by Mr. Bieren as relating to the  
operation of more agile cars, as opposed to trucks or other vehicles. For the purposes of any speed  
calculations leading to compensation to the claimant (which, given the view the Board has  
ultimately taken of the overall income approach argued on behalf of the claimant, is unnecessary), a  
speed of 30 km/h should apply.  
[593] In the context of the issue of speed, the Board has reviewed the lack of a  
Alanding@ at the point where the government land access road meets the Westchester Road. In the  
Board=s view, while this might well justify, for a vehicle going downhill toward the intersection, a  
lower speed for the last few hundred metres prior to entering the intersection, it would not have any  
effect upon the overall average speeds maintained over the balance of the road, and would have no  
significant effect upon the average speeds going in the other direction, i.e., away from the  
intersection toward Westchester II East.  
[594] The Board, as is explored elsewhere in this decision, repeatedly found  
significant parts of Mr. Ryle=s claims with respect to the additional costs creating by the  
government land access roads to be of limited credibility.  
[595] One of these parts is his handling of the additional cost of a five ton truck for  
delivery of blueberries, an assertion which first appeared in his evidence at the hearing itself, in the  
wake of an error being identified in his evidence which had significantly reduced a part of the cost  
claim which he was advancing. In Exhibit H-4, which was filed with the Board in the course of Mr.  
Ryle=s evidence, Mr. Ryle said that a five ton truck would be needed to remove blueberries which  
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were being harvested. For the purposes of this analysis, the Board will simply accept Mr. Ryle=s  
assertion that a five ton truck is necessary, as well as his assertion that the operating cost for such a  
truck is $1 per kilometre. The additional round trip necessitated by the presence of the Cobequid  
Pass Highway for any vehicle moving from Westchester II West to Westchester II East is 11  
kilometres. Mr. Ryle performs a calculation in Exhibit H-4 which he relates to costs per acre.  
Again, Mr. Ryle=s calculations are, in part, founded, as he says at page 13 (the page before the page  
at which text from H-4 is inserted):  
. . . that equipment would be returned to the storage facility at the end of each working . . .  
He eventually calculates (through a method which the Board will not explore here) an  
additional cost per year for the operation of a five ton truck to haul blueberries during  
harvest season, of $5.50 per acre per year. If one applies this formula to the 34.5 acres of  
blueberry land which the Board has concluded might be developed between the right-of-  
way and the river, one obtains the following figure:  
$5.50 per acre per year x 34.5 acres = $189.75  
[596] If, however, one simply takes Mr. Ryle=s figure of $1 per kilometre for the  
operation of a five ton truck, one has a rate of $11 per round trip per five ton truck for a vehicle  
operating between Westchester II East and Westchester II West over the government land access  
road and the Westchester Road:  
5 ton truck @ $1.00 per km x 11 km = $11.00  
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Even if the Board accepts (just for the purposes of the present analysis) Mr. Ryle=s claim that 4,000  
pounds per acre will be harvested on average every two years, or 2,000 pounds per acre per year, this  
would mean, for the 34.5 acres, that 69,000 pounds of blueberries would be harvested on average  
each year. A five ton truck carries 10,000 pounds, meaning that 69,000 pounds could be carried by  
seven trucks. Seven trucks carrying out seven round trips would cost $77 (7 trips x $11). In short,  
Mr. Ryle=s per acre rate for the operation of a five ton truck, being $5.50, yields a cost of $189.75  
(34.5 acres x $5.50), whereas if the Board simply uses Mr. Ryle=s own figures with respect to the  
per kilometre operating cost of such a vehicle, the result is just $77. Again, on the balance of  
probabilities, the Board sees nothing in Mr. Ryle=s evidence which justifies the difference between  
these two figures.  
Ryle - Cost of Tractors  
[597] In the view of the Board, Mr. Ryle=s assertions in relation to the need for,  
cost of operation of, and frequency of trips of, tractors are a further illustration of the difficulties  
within the Ryle evidence with respect to income generally (and costs in particular) that ultimately  
led the Board to consider his evidence overall in relation to these matters to be less credible than, in  
the Board=s judgment, is necessary for the founding of any compensation based upon an income  
approach. Mr. Ryle asserted that 75 horsepower tractors cost $75,000, 85 horsepower tractors cost  
$85,000. He likewise claimed a correlation between horsepower and costs for operating tractors and  
equipment, testifying that the operating costs for a 75 horsepower tractor with operator is $75 per  
hour, with an 85 horsepower tractor and operator (as noted in the amendment to his report which he  
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made at Exhibit H-40) at a claimed cost of $85 per hour. The Board notes that the rates of $75 per  
hour and $85 per hour which Mr. Ryle was asserting at this point in his evidence are in relation to  
equipment owned by the claimant. At other points in his evidence, Mr. Ryle and Jim Harrison both  
asserted that the claimant=s ownership of its own equipment meant that it had lower operating costs  
than other business would have had. For example, Mr. Harrison, when giving evidence disagreed  
with Mr. Keough=s figures, saying that Mr. Keough=s figures (developed by Mr. Keough after  
conversation with Mr. Harrison) were costs which applied if one rented the service from someone  
else; according to Mr. Harrison, because his company had the equipment and the manpower, his  
costs would be Asomewhat less.@ The context in which they were asserting these lower costs was,  
for example, in relation to what it would have cost the claimant to develop new blueberry lands C a  
context in which the lower the figure, the more plausible the claimant=s alleged development plan.  
In the context of the part of the claim which related to the alleged additional costs occasioned by the  
government land access roads, however, it was to the advantage of the claimant to assert higher  
operating costs for equipment. Mr. Ryle=s claimed operating costs in this particular context for a 75  
horsepower and 85 horsepower tractor are, as already noted, $75 to $85 per hour. The Athol rental  
information does not indicate that an 85 horsepower tractor would rent for a different price than a 75  
horsepower tractor (it simply refers to a rate of $25 per hour for a Alarge 61+ horsepower@ tractor).  
These figures of $75 to $85 stand in striking contrast to those which appear in the Athol Report,  
which shows the cost to rent a Alarge 61+ horsepower@ tractor as being only $25 per hour.  
[598] The Board likewise has little confidence in the credibility of Mr. Ryle=s  
evidence with respect to the purported cost to the claimant of operating 75 and 85 horsepower  
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tractors. It has previously indicated it has no confidence in the basis for Mr. Ryle=s claiming that an  
85 horsepower tractor was now needed rather than a 75. Moreover, the Board is not, on the balance  
of probabilities, convinced that any tractor is needed for much of the work to which Mr. Ryle is  
referring. Part of his cost calculations in terms of the development of new blueberry lands involve,  
in Year 5, hauling straw and burning it on developing lands. Using straw in this way is the  
traditional method, alluded to by Mr. Ryle elsewhere in his evidence, when he expressed the opinion  
that he did not expect:  
anybody is going to be burning in the future . . . previously mowing was done with fairly heavy  
tractors, but now it's been realized that you don't need a heavy tractor for this.  
[599] In short, simply in relation to one cost component in the Ryle theory of  
compensation in the present case, that being tractors, the Board sees the following problems:  
1.  
2.  
3.  
Mr. Ryle increased the purported horsepower requirement for a tractor from 75  
horsepower to 85 horsepower with, from the Board=s point of view, no adequate  
justification;  
Mr. Ryle purported that the tractor would need to be returned from any work site in  
Westchester II East to Westchester II West at the end of each working day, and then  
would have to move back to the work site the following morning. Again, the Board,  
on the balance of probabilities, does not accept that this is necessary;  
The Board does not consider that, on the balance of probabilities, there is sufficient  
evidence before it to justify the use of a tractor at all for at least some of the  
activities for which Mr. Ryle appeared to be asserting, in putting forward his claim  
for additional costs, was necessary.  
The Board notes in passing that the figure of 11 kilometres round trip, repeatedly referred to in the  
evidence and in this decision, is deemed to be the additional round trip distance between  
Westchester II West and Westchester II East via the Westchester Road and the government land  
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access roads. All of the calculations of additional cost before the Board contain as a constant this  
particular figure. Further, Mr. Omond, in reaching his conclusions with respect to reduced market  
value, did so in his 2002 Addendum by taking into account an assumed round trip distance over the  
government land access roads and Westchester Road of 11 kilometres between Westchester II West  
and Westchester II East. As the Board has already noted, however, the evidence before the Board is  
that, of this 11 kilometre round trip distance, 4.4 kilometres is over the public Westchester Road.  
Implicit in the claimant=s theory of compensation, is the proposition that a reasonable person in the  
claimant=s position would want, for example, to haul wood harvested from Westchester II East, or  
blueberries harvested from Westchester II East, back to the entrance of Westchester II West before  
anything further is done with them. As the Board notes elsewhere in this decision, there is no home  
base at Westchester II West, no receiving facility there, and the claimant=s ordinary mode of  
operation is to move people and equipment from its actual home base at Southampton (nearly 40  
miles away from Westchester) to the various sites, whether they be in Cumberland County or even  
outside Nova Scotia, at which it happens to be working. Crops harvested from these sites, for  
example, are then transported by the claimant to either its receiving station at Southampton, or  
directly such processors as the giant Oxford Frozen Foods in Oxford, Nova Scotia. Thus, the Board  
considers, on the balance of probabilities, that one cannot automatically assume that pulp wood or  
blueberries (just to pick two examples out of a number for which the cost of alleged additional  
round trip cost of transportation was discussed in the course of this hearing), would automatically (as  
Mr. Ryle would assert) be taken from Westchester II East to Westchester II West, via the  
government land access roads and the Westchester Road. If pulpwood or blueberries were to be  
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harvested in Westchester II East, and these products transported over access roads on Westchester II  
East to the boundary of the property, they would then traverse the government land access roads  
(which in themselves account for only a 6.6 kilometre round trip, rather than the 11 kilometre total  
referred to repeatedly at the hearing). At the end of the government land access road, the claimant is  
then on the Westchester Road, a public highway, at which point, in the Board=s judgment, a  
reasonable claimant (or person doing work on behalf of the claimant), would thereupon not head to  
Westchester II West, but would take whatever was the shortest and most economical route to deliver  
the wood or blueberries to their destination. In the case of wood, the destination would be a pulp  
mill, of the type described by Ms. Haylock, perhaps as far away as northern New Brunswick. In the  
case of blueberries, the route would be to either the claimant=s receiving shed in Southampton,  
where the berries would remain for at most two or three days, or direct to a processor such as the  
giant Oxford Frozen Foods. The route taken for such deliveries might, or might not, take the trucks  
past the entrance of the Westchester II West property. If it did not, the additional round trip cost  
which might be applicable would in such instance perhaps be 6.6 kilometres only, rather than 11  
kilometres.  
XVI COSTS OF DEVELOPMENT OF PRODUCING BLUEBERRY LAND  
Bradley Report Comments on Costs in Ryle Report  
[600]  
Mr. Bradley was critical of the Ryle Report, and commented, in some detail, upon it.  
He categorized the losses described therein as, first, loss of future production from the leased Bogle  
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lands; second, excess costs of development and operation; and third, alleged losses resulting from  
delay in the company=s land development program.  
[601] He described Mr. Ryle=s position as advancing two scenarios, the first being  
referred to by the claimant as the continuance scenario, and the second being referred to by the  
claimant as the abandonment scenario. Mr. Ryle=s calculated losses for the claimant for these two  
scenarios were, respectively, $838,055 and $787,296 (Bradley, page 2).  
[602] Mr. Bradley examined the income statements of the claimant for the years  
1990 through 1999, and summarized these in Schedule 1 of his report. At page 6 of his report, he  
noted that, for the period 1990 to 1995, i.e., leading up to the expropriation, the primary source of  
revenue for the claimant was blueberry sales, and that these ranged from $327,451 to $576,828, with  
significant variations in market price and sales volume during that period, such as a 41% decline in  
1993 and a 49% increase in 1995.  
[603] In the post expropriation period, revenue from blueberry sales increased  
significantly, ranging from $719,334 to $1,171,475, reflecting, according to Mr. Bradley, generally  
higher market prices as well as the company=s increased buying and brokerage activity.  
[604] Pretax income in the 1990 to 1995 period varied widely: while the average  
was $9,701, it ranged from as high as $103,290 to as low as a $97,982 loss, in consecutive years.  
Post expropriation, the average pretax operating income was $6,867, although with less variation,  
ranging from $40,841 to a loss of $45,025.  
[605] Mr. Bradley said that the Ryle report, while it assumed a profit rate of $950  
per acre, did not provide calculations supporting the $950 per acre profit which Mr. Ryle assumed to  
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apply. Accordingly, Mr. Bradley calculated a profit per acre using both industry average price and  
cost information, as well as sales and cost information supplied by the claimant (Bradley Report,  
page 10)].  
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Schedule 1 of Bradley Report: Claimant=s Statements of Income (Unaudited) for 1990 to 1999  
POST-EXPROPRIATION  
PRE-EXPROPRIATION  
1999  
1998  
1997  
1996  
1995  
1994  
1993  
1992  
1991  
1990  
Line  
Revenues:  
Blueberries  
1,171,47  
808,304  
5,651  
27,321  
108,491  
719,334  
14,598  
38,128  
6,823  
748,950  
2,975  
-
486,775  
327,451  
340,962  
576,828  
412,831  
357,571  
1
2
3
4
Wood  
Trucking  
Custom Work (Note 2)  
5
-
46,115  
96,535  
18,162  
1,314,12  
5
949,767  
778,883  
770,087  
486,775  
327,451  
340,962  
576,828  
412,831  
357,571  
5
Operating Expenses:  
Purchases - blueberries  
Accounting and legal  
Bad debts  
860,777  
4,734  
-
562,969  
10,511  
2,086  
435,229  
4,701  
-
5,725  
70,543  
53,251  
-
19,648  
27,862  
122,877  
28,271  
481,538  
2,847  
6,139  
-
41,853  
41,218  
-
12,127  
24,542  
92,935  
39,859  
214,546  
9,297  
-
148,651  
3,217  
1,016  
-
9,803  
54,780  
14,014  
9,565  
37,517  
47,120  
7,549  
110,402  
2,355  
-
305,908  
2,156  
-
234,788  
16,643  
66,870  
-
10,796  
61,089  
2,732  
11,297  
46,668  
27,953  
24,712  
190,251  
17,301  
30,334  
-
10,198  
19,112  
-
11,248  
42,130  
27,933  
11,391  
6
7
8
9
10  
11  
12  
13  
14  
15  
16  
Custom work  
Depreciation  
Field supplies  
Land clearing  
Motor vehicle and equipment  
operation  
Picking  
Wages and benefits  
Other  
226  
9,341  
-
-
-
56,383  
89,398  
-
35,174  
13,316  
162,713  
28,512  
61,708  
88,042  
-
27,998  
16,643  
132,518  
32,096  
27,243  
28,095  
-
7,587  
77,139  
78,276  
21,371  
15,332  
37,884  
5,648  
14,936  
53,749  
39,461  
11,127  
17,257  
35,284  
-
4,281  
61,424  
44,234  
8,120  
Operating expenses  
1,251,23  
3
943,912  
5,855  
768,107  
10,776  
743,058  
27,029  
463,554  
23,221  
333,232  
(5,781)  
290894  
50,068  
478,664  
98,164  
503548  
359898  
(2327)  
17  
18  
Operating income before interest  
62,892  
(90,717)  
Interest and bank charges  
Interest on long-term debt  
5,547  
28,117  
4,388  
46,506  
2,075  
43,002  
2,794  
33,693  
15,055  
31,451  
17,521  
8,071  
9,687  
27,376  
6,552  
15,257  
7,649  
19,934  
9,054  
4,348  
19  
20  
33,664  
50,894  
45,077  
36,487  
46,506  
25,592  
37,063  
21,809  
27,583  
13,402  
21  
Operating income after interest  
Other income  
29,228  
11,613  
(45,039)  
14  
(34,301)  
53,291  
(9,458)  
22,121  
(23,285)  
10,000  
(31,373)  
20,957  
13,005  
50,337  
76,355  
26,935  
(118,300)  
20,318  
(15,729)  
28,986  
22  
23  
Income (loss) before income taxes  
40,841  
(45,025)  
18,990  
12,663  
(13,285)  
(10,416)  
63,342  
103,290  
(97,982)  
13,257  
24  
Statistics:  
363,171  
45%  
862,016  
417,070  
88,970  
12%  
(29,616)  
-4%  
262,175  
54%  
159,324  
49%  
(13,511)  
-4%  
(235,866)  
-41%  
163,997  
40%  
55,260  
15%  
25  
26  
27  
28  
Blueberry revenue change - $  
Blueberry revenue change - %  
Average blueberry revenue 1996 - 1999  
Average blueberry revenue 1990 - 1995  
Average pre-tax operating income:  
1996 - 1999  
6,867  
9,901  
29  
30  
1990 - 1995  
Notes:  
Document: EF315732765317252AEE096592BB9CF7.TMP  
2004 NSUARB 121 (CanLII)  
- 295 -  
POST-EXPROPRIATION  
PRE-EXPROPRIATION  
1999  
1998  
1997  
1996  
1995  
1994  
1993  
1992  
1991  
1990  
Line  
1. Source: Annual financial statements prepared by Jorgensen & Bickerton, Chartered Accountants  
2. Prior to 1996, custom work was included in Other Income (Line 23)  
Schedule 2 of Bradley Report: Claimant=s Operating Statistics for 1990 to 2002  
POST-EXPROPRIATION  
PRE-EXPROPRIATION  
2002  
n/a  
2001  
n/a  
2000  
1999  
1998  
1997  
1996  
1995  
1994  
1993  
1992  
1991  
1990  
Line  
1
Blueberry revenue ($):  
Sch. 1  
n/a  
1.171,475  
808,304  
719,334  
748,950  
486,775  
327,451  
340,962  
576,828  
412,831  
357,57  
1
Volume of blueberries harvested (lbs.)  
Volume of blueberries purchased (lbs.)  
Note 2  
Note 2  
305,849  
781,014  
245,874  
651,904  
320,816  
842,277  
254,829  
1,146,833  
258,192  
794,464  
275,555  
769,892  
236,952  
581,464  
463,657  
509,735  
160,156  
396,169  
292,385  
371,590  
170,547  
n/a  
271,232  
n/a  
2
3
145,36  
5
n/a  
Value of blueberries sold (lbs.)  
1,086,863  
897,778  
1,163,09  
3
1,401,662  
1,052,65  
6
1,045,44  
7
818,416  
973,392  
556,325  
663,975  
n/a  
n/a  
n/a  
4
Volume of blueberries harvested (lbs.)  
Acres harvested  
Note 2  
Note 2  
305,849  
n/a  
245,874  
n/a  
320,816  
200  
254,829  
230  
258,192  
150  
275,555  
230  
236,952  
150  
463,657  
210  
160,156  
130  
292,385  
135  
170,547  
120  
271,232  
125  
145,36  
5
5
6
115  
Yield (lbs. per acre)  
Line 6/Line 5  
n/a  
n/a  
1,604  
1,108  
1,721  
1,198  
1,580  
2,208  
1,232  
2,166  
1,421  
2,170  
1,264  
7
8
Calculation of estimated revenue per acre from  
blueberries harvested:  
Volume of blueberries harvested (lbs.)  
Line 2  
Sch. 3  
320,816  
254,829  
258,192  
275,555  
236,952  
463,657  
160,156  
292,385  
170,547  
Average market price ($)  
Grower/buyer premium ($)  
0.61  
0.10  
0.70  
0.10  
0.70  
0.10  
0.62  
0.10  
0.71  
0.10  
0.40  
0.10  
0.41  
0.10  
0.36  
0.10  
0.50  
0.10  
9
10  
Harrison=s estimated price/lb. ($)  
0.71  
0.80  
0.80  
0.72  
0.81  
0.50  
0.51  
0.46  
0.60  
11  
Est. revenue from blueberries harvested Line 8* Line 11  
227,779  
200  
203,863  
230  
206,554  
150  
198,400  
230  
191,931  
150  
231,829  
210  
81,680  
130  
134,497  
135  
102,328  
120  
12  
13  
Acres harvested  
Line 6  
Revenue per acre ($)  
Line 12/Line 13  
1,139  
886  
1,377  
863  
1,280  
1,104  
628  
996  
853  
14  
Average yield per acre (lbs.):  
1990 - 1995  
1996 - 2000  
1,743  
1,442  
1,607  
15  
16  
17  
Note 3  
Note 4  
1990 - 2000  
Average revenue per acre ($)  
Notes:  
1,014  
18  
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POST-EXPROPRIATION  
2000 1999  
PRE-EXPROPRIATION  
1993 1992  
2002  
2001  
1998  
1997  
1996  
1995  
1994  
1991  
1990  
Line  
1. Due to incomplete information, data is not presented for all years.  
2. Source: Information provided by the Claimant in correspondence to Department of Justice dated October 7, 2002.  
3. Based upon information obtained from Dr. Leonard Eaton.  
4. Average 1992 to 2000 revenue per acre based upon data at Line 12.  
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In his report, Mr. Keough refers to the estimates in Mr. Ryle=s report of increased annual  
costs arising from the expropriation, and lost profits due to delay in the planned  
development, some of which estimates were challenged in the Bradley Report. Mr. Keough  
says:  
We did not conduct any specific procedures to enable us to express an opinion on the cost  
estimates or lost profits themselves, nor did we address the issue of mitigation.  
XVII BOARD CALCULATION OF DEEMED PROFIT PER ACRE OF BLUEBERRY  
LAND BASED UPON BOARD ESTIMATES OF YIELD PER ACRE  
[606] The Board has set the yield per acre for Years 7 to 10 at 1,000 pounds per  
acre, and for Years 11 through 14, at 1,750 pounds per acre, and for the 15th year and beyond, 2,500  
pounds per acre. As the Board has already noted, Mr. Ryle claims a profit of $950 per acre per year,  
or $1,900 for every two year cycle. Simply using the cost figures from the 2000 Situation Report  
results in the following profit per acre table at the three assumed levels of yield:  
Profit Per Acre at Assumed Price of 60 Cents Per Pound  
Year  
Yield Per  
Acre (lbs)  
Total Cost  
Per Pound  
Cost Per Acre  
(Yield x Total  
Cost)  
Gross Revenue  
Per Acre  
(Yield Per Acre x  
Price Per Pound)  
Profit Per Acre  
(Gross Revenue  
Per Acre - Cost  
Per Acre); 2 Yr  
Cycle  
Profit Per Acre  
Per Year ()2)  
7-10  
11-14  
15+  
1000  
1750  
2500  
49.5  
32.4  
25  
$495  
$567  
$625  
$600  
$105  
$483  
$875  
$52.50  
$241.50  
$437.50  
$1,050  
$1,500  
The profit per acre in Year 15 and later is $875 per acre, a figure a little more than 10%  
greater than that calculated by Mr. Keough ($794 per acre) in Appendix AB@ of his report  
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for 60 cents per pound at an assumed yield of 2,500 pounds per acre. The Bradley Report,  
in Schedule 4B, assumes a price of $0.58 per pound, with a $0.10 per pound broker or  
buyer=s commission, yielding a price of $0.68 per pound. Mr. Bradley assumed, based on  
the yield data that he had obtained in relation to the claimant, as well as industry statistics,  
that the average would be 1,750 pounds per acre for each two-year cycle. At that yield  
rate, the profit per acre would be $623, according to Mr. Bradley=s table; at a yield rate of  
2,500 pounds, with an average price per pound of $0.68 ($0.58 + $0.10), he obtained a  
profit per acre of $1,075 for every two-year cycle. Mr. Bradley used various prices for  
various periods, his Schedule A4A@ (the 11 years ending in 2002) for example, assuming a  
net average price of $0.62 ($0.52 + $0.10), while Schedule 4B, on the other hand, he used  
the 1996 to 2002 time period, deducing an average price per pound of $0.58, plus $0.10  
per pound for a broker/buyer premium. He suggested using the 1996 to 2002 period for  
past loss of profits because there would be no uncertainty as to price for that period. Mr.  
Bradley applied the figure of $623 of profit per acre every two years to past loss of profits  
(Schedule 4B), with $518 profit per acre being applied to future loss of profits (Schedule  
4A). In contrast, Mr. Ryle=s calculation was of an assumed average profit per acre,  
beginning in Year 6, of $1,900 for every two-year cycle.  
XVIII COMPENSATION FOR DISTURBANCE AND OCCUPATION OF CLAIMANT=S  
LANDS  
[607] Section 26(b) and s. 27(3)(b)(ii) of the Expropriation Act both refer to  
Aowners disturbance,@ but the Act contains no definition of this concept.  
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Todd, at page 274, defines disturbance damage:  
ADisturbance damage may be defined generally as economic loss suffered by an owner by  
reason of having to vacate expropriated property.@  
[608] He then refers to the following definition in R. v. Thomas Lawson & Sons  
Ltd., [1948] 3 D.L.R. 334, 348, at page 274:  
Claims have been allowed in this Court in respect of a variety of items of disturbance,  
including the cost of moving to new premises, the depreciation in value of machinery,  
equipment or other chattels through necessary removal or sale, the increased cost of doing  
business in the new premises, the disturbance or loss of business or the chance of making  
profits or the loss or diminution in value of good will.  
[609] He also quotes at page 275 from Diggon-Hibben Ltd. v. R., [1949] 4 D.L.R.  
785 [S.C.R. 712] which includes a reference to the amount of money  
A. . . for the owner to be permitted to continue in possession in the operation of his business  
and to avoid the cost of moving and such disruption that might be caused by having to do  
so.@  
[610] Section 26(b) of the Act states as follows:  
s. 26 The due compensation payable to the owner for lands expropriated shall be the  
aggregate of  
(b)  
the reasonable costs, expenses and losses arising out of or  
incidental to the owner=s disturbance determined as hereinafter set  
forth;  
[611] Section 27(3)(b)(ii) states:  
Land value to be market value  
s. 27(2)  
Subject to this Section, the value of land expropriated is the market value  
thereof, that is to say, the amount that would have been paid for the land if,  
at the time of its taking, it had been sold in the open market by a willing  
seller to a willing buyer.  
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Land value where owner-occupier dislocated  
(3)  
Where the owner of land expropriated was in occupation of the land at the  
time the expropriation document was deposited in the registry of deeds and,  
as a result of the expropriation, it has been necessary for him to give up  
occupation of the land, the value of the land expropriated is the greater of  
(a)  
(b)  
the market value thereof determined as set forth in  
subsection (2); and  
the aggregate of  
(ii)  
the costs, expenses and losses arising out of or  
incidental to the owner=s disturbance including  
moving to other premises but if such cannot  
practically be estimated or determined, there may  
be allowed in lieu thereof a percentage, not  
exceeding fifteen, of the market value determined  
as set forth in subclause (I),  
plus the value to the owner of any element of special economic advantage  
to him arising out of or incidental to his occupation of the land, to the extent  
that no other provision is made by this clause for the inclusion thereof in  
determining the value of the land expropriated. [emphasis added]  
[612] Subsection 27(8) states:  
Considerations under subclause (3)(b)(ii)  
s. 27(8) For the purposes of subclause (ii) of clause (b) of subsection (3)  
consideration shall be given to the time and circumstances in which an  
owner was allowed to continue in occupation of the land after the  
expropriating authority became entitled to take physical possession or make  
use thereof, and to any assistance given by the expropriating authority to  
enable such owner to seek and obtain alternative premises.  
[613] Section 268) also refers to damages for Ainjurious affection,@  
s. 26 The due compensation payable to the owner for lands expropriated shall be the  
aggregate of  
8)  
damages for injurious affection as hereinafter set forth . . .  
AInjurious affection@ is defined at s. 3(1)(h):  
s. 3 (1) In this Act,  
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(h)  
"injurious affection" means  
(I)  
where a statutory authority acquires part of the land of an  
owner,  
(A)  
(B)  
the reduction in market value thereby caused to  
the remaining land of the owner by the acquisition  
or by the construction of the works thereon or by  
the use of the works thereon or any combination of  
them, and  
such personal and business damages, resulting  
from the construction or use, or both, of the works  
as the statutory authority would be liable for if the  
construction or use were not under the authority of  
a statute,  
(ii)  
where the statutory authority does not acquire part of the  
land of an owner,  
(A)  
(B)  
such reduction in the market value of the land of  
the owner, and  
such personal and business damages, resulting  
from the construction and not the use of the works  
by the statutory authority, as the statutory authority  
would be liable for if the construction were not  
under the authority of a statute,  
and for the purposes of subclause (I), part of the land of an owner  
shall be deemed to have been acquired where the owner from  
whom land is acquired retains land contiguous to that acquired or  
retains land of which the use is enhanced by unified ownership with  
that acquired;  
[614] As noted above, s. 26 (b) refers to Acosts, expenses and losses arising out of  
or incidental to the owners disturbance determined as hereinafter set forth,@ but provides no  
definition of Adisturbance.@ Section 27(3) provides for compensation for owners disturbance, in  
clause (b) (ii), but states, in the view of the Board, a clear precondition for such compensation in the  
opening phrase of s. 27(3) AWhere the owner of land expropriated was in occupation of the land at  
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the time the expropriation document was deposited . . .@ In the present case, the Board finds that the  
claimant was not in occupation of the land which was expropriated, nor, insofar as it may be  
relevant, was the claimant in occupation of any of the lands in Westchester II East (i.e., of any of the  
lands to the east of the right-of-way).  
[615] The Court of Appeal has provided guidance to the Board with respect to the  
nature of the act required to satisfy the condition of being Ain occupation of the land.@ In Bank of  
Nova Scotia et al. v. Province of Nova Scotia (1977), 22 N.S.R. (2d), the Court of Appeal,  
referring to s. 26(d), in which the term Aactual occupation of the land@ appears, said that land which  
was vacant, as Portland Estate=s land was, was not property in relation to which it could be said the  
claimant was in Aactual occupation.@ The Court in Powell was exploring the section from the point  
of view of special economic advantage. In Powell, the Court of Appeal said that the preparation of  
engineering plans for a proposed subdivision did not amount to use or occupation. No such plans,  
nor anything analogous to them, of course, exist in the present proceeding.  
[616] The Board notes that s. 26(d), providing compensation for special economic  
advantage, refers to the Aactual occupation of the land,@ while s. 27(3), in the context of which s.  
27(3)(b)(ii) is referenced to Aowners disturbance@ must be seen, refers merely to the Aoccupation of  
the land,@ i.e., the term Aactual@ does not appear. The Court of Appeal=s review of occupation in  
Powell refers to, in paragraph 58, Aactual occupation,@ while paragraph 54 of the same decision  
states that one of the three prerequisites for special economic advantage is simply Ause or  
occupation.@ While a distinction might, perhaps, be drawn between Aactual occupation@ and  
Aoccupation,@ as used in the provisions referred to above, the Board finds, for purposes of this  
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proceeding, that the claimant was neither in Aactual occupation@ nor occupation of the lands which  
were expropriated, or of its lands in Westchester II East, to the east of the right-of-way.  
[617] Taking into account the Court of Appeal=s guidance in Bank of Nova Scotia  
and in Powell, it is the view of the Board that Westchester II East (a property which has only once  
been completely traversed by Jim Harrison, the owner of the corporate claimant, with that visit  
occurring only three years after the expropriation itself) does not meet the test of being in occupation  
of the land that is required by s. 27(3). Section 27(3) refers consistently to an Aowner.@  
[618] The Board therefore finds that Aowners disturbance@ is not a compensable  
item in relation to the property at Westchester II. To the extent that the provision has application, it  
may apply only to the claimant=s leasehold interest in the expropriated Bogle lands, to which topic  
the Board will now turn.  
XIX CLAIM FOR LOSSES IN RELATION TO CLAIMANT=S LEASEHOLD INTEREST  
IN BOGLE PROPERTY  
[619] The Ryle Report advances an extensive claim on behalf of the claimant in  
relation to the Bogle field, adjacent to Westchester II West, which the claimant leases from Mrs.  
Bogle. At page iii of his report, Mr. Ryle states a claim for loss of future production on the Bogle  
lands of $18,703. Until 1995, the claimant leased all of the Bogle field, including .167 hectares (or  
.41 acres of blueberry lands which were acquired by the Crown from Mrs. Bogle, and now form part  
of the right-of-way). The Crown, it seems, reached a settlement with her for compensation.  
Whatever compensation may have been paid to Mrs. Bogle (and for what form or forms of loss) is  
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neither a matter of evidence before this Board, nor a matter over which it has jurisdiction. The  
parties appear to have agreed that the area of the Bogle property which was expropriated could be  
regarded as being .5 acres. The Ryle Report claims compensation arising from losses allegedly  
incurred by the claimant as a result of the Crown=s acquisition of these .5 acres, and as a result of  
the salt spray protection strip (calculated by Mr. Ryle to be 2.1 acres) which Mr. Ryle asserted to be  
necessary on the west side of the Cobequid Pass Highway right-of-way. As is discussed elsewhere  
in this decision, the Board has rejected the latter assertion, i.e., it has found that no such salt spray  
protection strip is necessary on the west side of the Cobequid Pass Highway right-of-way, whether  
in relation to the lands of the claimant, or the leasehold interest of the claimant in the Bogle  
property.  
[620] The Crown=s prehearing brief says that the claimant is seeking compensation  
for claimed losses associated with its blueberry operations on a one half acre piece of land  
expropriated from the Bogle property, meaning that the claimant, in the words of the Crown, Amay  
be entitled to disturbance damages for the half acre that was taken.@ Mr. Harrison agreed that he has  
leased other blueberry fields since 1995, and certainly that he has leased more than half an acre,  
which would replace the half acre of land which was available at the Bogle property, but no longer is  
as a result of having been expropriated into the right-of-way.  
[621] The claimant asserts a right to compensation in relation to the profits which  
the claimant says it would have earned had the claimant continued to work the half acre of land in  
the Bogle property which was expropriated and harvest blueberry crops from it. The Ryle Report  
postulates an annual per acre profit for blueberry operations by the claimant of $900 per acre, from  
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which Mr. Ryle deducts $150 for a rental payment from the claimant to Mrs. Bogle, thereby  
deducing a profit per acre Anet of lease@ of $800 (the Board notes that on page 8 of his report, Mr.  
Ryle refers to annual lease payments per acre of $100 at one point, and later on the same page, refers  
to an average annual net income of $950, with the average annual net income Afollowing the lease  
payments@ of Aat least $800 per acre,@ indicating a lease amount of $150 per acre.)  
[622] If one were to assume, simply for the purposes of the present analysis, that  
Mr. Ryle=s claimed profit figure of $800 per acre per year is reasonable, that his market value for  
fully developed blueberry land of $3,000 per acre is reasonable, and that his claim for lost income  
extending into the future for a property which is not owned by the claimant, but simply leased (with  
no written lease and no right of first refusal), is likewise reasonable, one is faced with a scenario  
which can be described as follows:  
2.6 acres x $3,000 = $7,800  
$800 per acre per year x 2.6 = $2,080  
$2,080 ) 7,800 = 26.7%  
Thus, even if the claimant owned the 2.6 acres of Bogle land C which it does not C the Ryle  
hypothesis asks the Board to accept that the ratio of net income to the value of a fee simple interest  
in the asset would be on average 26.7%. This conclusion may be seen as having some parallels with  
the evidence given by Mr. Keough as to the improbability of developed blueberry lands actually  
having a price per acre of $3,000, a yield per acre of 4,000 pounds, and a profit per acre of $950.  
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[623] As was noted in Williams, ss. 3(1)(I), (j) and (q) provide a broad definition of  
the property rights which attract compensation, these include tenant:  
s. 3 (1) In this Act,  
(I)  
(j)  
"land" includes any estate, term, easement, right or interest in, to,  
over or affecting land;  
"owner" includes a mortgagee, tenant, registered judgment creditor,  
a person entitled to a limited estate or interest in land, a guardian or  
trustee of an incompetent person or of a person incapable of  
managing his affairs, and a guardian, executor, administrator or  
trustee in whom land is vested;  
(q)  
"tenant" includes a lessee or occupant occupying premises under  
any tenancy whether written, oral or implied.  
In other words, under the Expropriation Act, the term Aowner@ is not restricted to its  
ordinary meaning, and includes a Atenant.@  
[624] Section 27(3) can therefore apply to a tenant in the same way that it applies to  
an owner. Section 27(9), however, explicitly places a tenant in a position of an owner:  
Payment to tenant for disturbance  
s. 27 (9)  
The expropriating authority shall pay to a tenant occupying land expropriated  
in respect of disturbance so much of the cost referred to in subclause (ii) of  
clause (b) of subsection (3) as is appropriate having regard to  
(a)  
the length of the term of the lease and the portion of the  
term remaining at the time at which the determination is  
relevant;  
(b)  
any right or reasonable prospect of renewal of the term that  
the tenant had; and  
8)  
any investment in the land by the tenant and the nature of  
any business carried on by him thereon.  
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Section 27(9) thus refers to Aa tenant occupying land,@ while s. 27(3) refers to an owner  
(which by virtue of s. 27(3), can include a tenant, being Ain occupation of the land at the  
time the expropriation document was deposited.@  
[625] Applying these provisions with respect to the expropriated Bogle lands within  
the meaning of s. 27(3), and within the meaning of s. 27(9), the Board considers that the claimant  
was indeed in occupation of the lands leased from Mrs. Bogle, within the meaning of s. 27(3).  
[626] Section 27(9) requires the expropriating authority to pay for disturbance costs  
referred to in s. 27(3)(b)(ii) as is appropriate having regard to such things as the length of the term of  
the lease, the time remaining in the lease, the right or reasonable prospect of renewal and any  
investment in the land by the tenant, and the nature of business carried out by the tenant (s. 27(9)(a),  
(b) and 8))). Nevertheless, compensation pursuant to s. 27(3) in relation to the expropriation of the  
Bogle property would be potentially payable only under s. 27(3)(ii) (owners disturbance, including  
moving expenses), together with any Aspecial economic advantage@ arising to the claimant in  
relation to the leased Bogle lands. In the present proceeding, applying the case law, including the  
Court of Appeal=s exploration of this in related issues in Powell, the Board finds that no special  
economic advantage accrued to the claimant in relation to the Bogle lands. In the view of the Board,  
the evidence provided by the claimant fails, on the balance of probability, to show that the  
replacement land (which the Board deems to be part of the lands leased by the claimant subsequent  
to the expropriation), wherever that land may be located, has characteristics, including a net revenue  
per acre (resulting from the yield per acre, rent, costs of production, etc., which may be particular to  
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that property) which are sufficiently different to allow characterizing the half acre of Bogle land as  
having conferred a Aspecial economic advantage@ upon the claimant.  
[627] Counsel for the respondent summarizes the claimant=s claims in relation to  
the Bogle property as relating to alleged future profits which would have been earned from the half  
acre expropriated and from the 2.18 buffer zone claimed by Mr. Ryle. He summarizes the claim for  
lost future profits as relating to disturbance damages (business loss) or injurious affection (business  
damages), but not a claim for market value in relation to the leasehold interest. Counsel for the  
respondent submits there is no claim for the market value of the leasehold interest. He quotes Eric  
C.E. Todd, The Law of Expropriation and Compensation in Canada (2nd Edition) on the value  
of a leasehold interest. Todd, at page 413, discussing the value of a leasehold interest, cites  
Middleton, J., in Toronto (City) v. McPhedran (1923), 540 O.L.R. 87, 92 (C.A.) as defining the  
market value of a lease as:  
the present value of the difference between the rental paid by the tenant, and the rental that  
the property is worth, for the unexpired portion of the lease. [para. 27]  
Todd goes on to say that the market value of the lease:  
. . . is the present value, discounted at a market determined rate, of the difference, if any,  
between the contract rent provided for in the lease and the economic rent which is the  
amount the property could have been rented for . . . to a new tenant .  
The difference between the economic rent and the contract rent is known as the >profit rent.=  
In the absence of a profit rent the leasehold interest has no market value and the lessee will  
not be entitled to compensation for it, although in appropriate circumstances, the lessee will  
be entitled to disturbance damages .  
. . .  
. . . the market value of a lease will be adversely affected if the lease confers on the lessor  
the right to terminate it, notwithstanding evidence on the part of the lessor as to the  
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unlikelihood of termination. On the other hand, the market value may be enhanced by lease  
terms such as an option to purchase the freehold.  
[628] The Board notes that, at page 289 of Todd, with respect to disturbance  
damage, an owner Ais entitled to the reasonable costs of finding replacement premises.@  
[629] The Board finds that the evidence does not indicate, on the balance of  
probabilities, any costs, expenses or losses incidental to the claimant leasing the substitute half acre.  
Indeed, the evidence indicates that Jim Harrison has in the years since 1995 engaged in the  
significant acquisition and development (both by purchase and lease) of far more land than a mere  
half acre.  
[630] As an alternative approach, following the Dell philosophy, the Board could set  
compensation for any expenses which may have arisen in relation to the claimant acquiring a  
leasehold interest in other property at 15% of the market value of the claimant=s interest in the  
Bogle property. That market value, however, is not the price per acre of the Bogle property if it  
were to be sold by the owner of the fee simple interest (i.e., Mrs. Bogle), as developed blueberry  
land, but the market value of the claimant=s leasehold interest in the property.  
[631] One of the issues in the Williams was the significance of a leasehold interest.  
At the time the government bought the leased property in question, as part of an overall large  
expropriation proceeding which related to the construction of the Trans Canada Highway near New  
Glasgow, the Williams did not have a written lease or a right of first refusal. The Board chose to  
treat the respondent=s interest in the lease as a far more substantial one than a mere monthly lease.  
While noting that:  
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To be sure, a monthly lease affords a tenant little compensable protection. [para. 43]  
the majority of the Court of Appeal concluded that the Board had:  
. . . made a finding of fact which was not patently unreasonable, that the Williams= interest in  
Sector 5 was far more substantial than a mere monthly lease. [para. 55]  
Hallett, J.A., in a vigorous dissent, said that the parcel rented by the Williams (which was a  
key part of the claimant=s case and of the Board=s award), being only a month-to-month  
lease (after some years a written lease for a term of years had not been in place), could  
have been terminated at any time by the landlord on one month=s notice, with the Williams  
having no recourse:  
When possession of part of the core area of the farm is possessed only by way of a short-  
term tenancy, the termination of which can result in such a substantial loss of profit as  
calculated by the Board, the land assembly is neither in order nor elegant. On the contrary, it  
is very fragile. [para. 110]  
. . .  
The finding that the tenancy interest would have continued indefinitely is a matter of  
speculation that is not supported by the realities of the situation; Williams had a month to  
month tenancy . . . They had no enforcible right that would have allowed them to continue . .  
. for the 20 years that formed the basis of calculating the loss of income component of the  
award. The Board's finding that the lease arrangement with Newport would have continued  
indefinitely is a patently unreasonable finding given that it could have been terminated at any  
time on one month's notice. [para. 112]  
The words Ain order@ and Aelegant@ had been used by the Board to describe the property  
interest structure of the owners in the Williams.  
[632] The Board concludes that, on the evidence before it, it cannot conclude, on the  
balance of probabilities, that the lease with Mrs. Bogle is not Asimilar to the terms@ that the claimant  
may have entered into with other owners who leased other properties since the date of expropriation.  
The Board further concludes that the evidence before it does not justify it deciding that the contract  
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rent and the economic rent are in fact different, i.e., that a profit rent is payable. The Board  
concludes that there is no profit rent payable in relation to the Bogle property and accordingly, no  
compensation is payable in relation to the market value of the lease.  
[633] While the Board has concluded that no compensation is payable to the  
claimant in relation to the market value of its leasehold interest in the expropriated Bogle lands,  
there remains the question of disturbance damages relating to the same half acre, in which the  
claimant has been harvesting blueberries at the time of the expropriation.  
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[634] Section 29 provides for compensation for business loss resulting from any  
relocation of the business made necessary by the expropriation or arising from the termination of the  
business where it is not feasible to relocate it (s. 29 (1) and (2); para. 33, Crown=s brief). In the  
present case, the Board finds that the claimant has leased other blueberry fields since the date of the  
expropriation. Without doubt, the claimant no longer can work and harvest the half acre of Bogle  
blueberry lands which are now included in the right-of-way. On the other hand, the claimant now  
has other leased acres, and indeed more than it did at the time of the expropriation in 1995. The  
claimant has leased more than half an acre of blueberry fields since the expropriation, and, in the  
Board=s view, one half acre of the totality of new leased lands can be taken to have replaced the  
former half acre. On this point, the Board notes the two-year cycle applicable to most blueberry  
operations, and notes that the Bogle property produced a crop in 1995, the year that the  
expropriation occurred. Following the usual two-year cycle for lowbush blueberries, the Bogle  
property would not have produced another crop until 1997. In the Board=s view, this means there  
was a period of about two years, from 1995 to 1997, during which the claimant was able to lease  
additional property, part of which it would use to substitute for the Bogle property, and ultimately  
harvest a crop from such lands in the fall of 1997 C a crop which would therefore be harvested at  
exactly the same time as the crop on the half acre of expropriated Bogle land would have been  
harvested. Given that blueberries are generally harvested in alternate years, there is a 50% chance  
that the half acre of replacement land would have been ready to harvest in 1996, rather than 1997,  
which would mean that the claimant could gain, rather than lose, profit as a result. Moreover, the  
Board concludes that the evidence before it would not justify, on the balance of probabilities, its  
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concluding that the profit to be gained from the half acre of the Bogle lands would be any more than  
the profits to be gained from other properties. This is particularly so, given that profit is a result not  
simply of yield per acre, but of other factors, and given the fact that even Mr. Ryle=s evidence  
points to lands within Westchester II West as enjoying a claimed price per acre, and profit per acre,  
which is identical to that claimed by Mr. Ryle for lands elsewhere.  
[635] In the view of the Board, the ability to make a claim for a loss under s. 29 (2)  
requires that a claimant who is the owner of a business establish that it was not feasible to relocate  
the business which had been carried on at the expropriated site. If one considers the growing of  
blueberries on a half acre to be the business which the claimant was conducting, there is once again  
in the Board=s view, ample evidence to indicate that the claimant has acquired by leasehold (quite  
apart from purchase) a quantity of blueberry lands much in excess of the half acre which it lost.  
Under s. 29 (1), business losses are to be determined once a business has moved and been in  
operation for 12 months, or after three years have passed since the expropriation. In the view of the  
Board, this clearly indicates that, for a claim to be validly made here, evidence indicating difference  
in profitability from the changed location to the former Bogle one would be necessary. In the view  
of the Board, the claimant has failed to present evidence which, on the balance of probabilities,  
establishes such loss.  
[636] Compensation under s. 29 (1) relates to business loss resulting from the  
relocation of the business. If one considers the leasing of the .5 acre of Bogle land, and the  
production and harvesting of blueberries there on as a Abusiness@ within the meaning of s. 29 (1),  
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the Board has found that the evidence does not, on the balance of probabilities, establish any such  
loss.  
[637] Compensation under s. 29(2) of the Expropriation Act relates to situations  
where it is not feasible for the owner of a business to re-locate. To the extent that the claimant=s  
activities in relation to the .5 acre of Bogle land amounted to a Abusiness@ within the meaning of s.  
29, the Board considers that the evidence establishes that it was not only feasible for the claimant to  
re-locate its business, but that the claimant indeed did so.  
[638] The Board has already noted that it has rejected Mr. Ryle=s claim for a need  
for a salt spray protection strip on the west side of the Cobequid Pass Highway right-of-way. It has  
elsewhere rejected his claimed annual average net income of $950 per year per acre from developed  
blueberry lands as being inconsistent with the preponderance of the evidence before the Board. In  
relation to the Bogle property, the net annual profit of $950 per acre which Mr. Ryle reduced to Aat  
least $800" per acre, to account for lease payments. The exact amount of the lease payments is  
uncertain, with Mr. Harrison taking issue, it seemed, with Mr. Ryle=s assumptions in that regard,  
even though Mr. Harrison had seen the Ryle Report prior to its being submitted, and had talked with  
Mr. Ryle during its preparation. The following table, taken from page 9 of Mr. Ryle=s report,  
summarizes his claim with respect to his alleged net loss of profit per acre per year of $800, applied  
by Mr. Ryle to .5 acre parcel of Bogle land which was expropriated, and the 2.1 acres which Mr.  
Ryle said was subject to salt spray protection strips.  
VALUES  
Year of Loss  
Discounted Annual loss  
Accumulated Discounted loss  
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VALUES  
Year of Loss  
Discounted Annual loss  
Accumulated Discounted loss  
1
2
$2,080  
2,128  
1,976  
1,927  
1,879  
1,832  
1,786  
1,742  
1,698  
1,655  
$2,080  
4,208  
3
6,184  
4
8,111  
5
9,990  
6
11,822  
13,608  
15,350  
17,048  
18,703  
$18,703  
7
8
9
10  
[639] Mr. Bradley, explores in his report, and rejects, Mr. Ryle=s profit claims. At  
Schedule 6 AF@ of his report, Mr. Bradley estimates the loss of future production of .5 acres from  
the Bogle lands, with an assumed profit per acre of $160 per acre. He discounts past losses at 2.5%  
and then at 15%. In calculating past losses and discounting them at 2.5%, however, Mr. Bradley  
uses the average price per pound payable from 1996 to 2002, together with expense figures  
calculated after a review by Mr. Bradley of the industry costs and the claimant=s costs (as asserted  
to Mr. Bradley at the time of the preparation of his report). The claimant subsequently revoked  
those figures and substituted lower ones. Mr. Bradley, however, had deliberately chosen not to use  
the original, and higher, figure submitted by the claimant, but the lower industry wide figure, an  
approach which benefits the claimant.  
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[640] With respect to Mr. Ryle=s claim of $18,703 (p. 9 of his report) for the loss of  
net income from the expropriated .5 acres of Bogle lands, Mr. Omond, assuming, it seems, a net  
income of $400 per year, after payment of the Bogle lease, says that:  
Assuming a discount rate of 15%, the present worth of that lost revenue over a 10 year period  
would be $2,007.50, not the $18,703 reported at page 9 of the Ryle Report.  
[641] It may be, as counsel for the respondent Crown asserts at paragraph 23 of his  
closing brief, that no claim for loss in market value was advanced on behalf of the claimant, at least  
explicitly. To the extent that it may have been, or be implicit in various of the submissions made on  
behalf of the claimant, including that of Mr. Ryle, the Board notes its findings above to the effect  
that it has no evidence before it upon which to find, on the balance of probabilities, that the contract  
rent and the economic rent are different.  
XX  
BRADLEY ANALYSIS OF RYLE CLAIMS  
Excess Costs of Development and Operations; Delay of Development Program  
[642] Mr. Bradley reproduced in his report analyses by Mr. Ryle relating to the two  
above-noted topics. Mr. Bradley noted that he could not find support for many of the assumptions  
regarding the additional costs which appeared in it. While refraining from commenting upon the  
reasonableness of specific cost estimates, he then did a recalculation of damages, using the identical  
assumptions as the Ryle Report. However, he applied a 15% discount rate, which he considered to  
be preferable, which reduced the Ryle calculation of loss relating to excess costs of development and  
operations from $165,909 to $47,000 (Schedule 7A of the Bradley Report). Mr. Bradley did a  
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similar calculation in relation to Mr. Ryle=s calculation of losses associated with delay of the  
development program. This time, in addition to modifying the discount rate from 2.5% to 15%, Mr.  
Bradley ultimately reduced the assumed profit per acre from $950 per acre per year, as claimed by  
Mr. Ryle, to a figure of $518 every two years, or $260 annually. The end result of these calculations  
was to reduce Mr. Ryle=s claim in this regard its original level, which was $22,572, to $4,395. All  
of these figures assumed full development (i.e., 400 new acres of blueberry lands) as hypothesized in  
the Ryle Report.  
[643] These matters are explored in more detail below.  
XXI AHOME BASE@  
[644] The preponderance of evidence supports the conclusion that the home base is  
at Southampton, where Mr. Harrison lives, where his receiving station was built, and where the  
various types of equipment which he uses in his diverse corporate activities, including development,  
harvesting, etc., are maintained and stored. From its base of operations at Southampton, the  
claimant moves equipment, and sometimes people, not just to Westchester II or Westchester I, but  
to all of its scattered properties, and to the properties of its customers for whom it does custom work.  
With respect to its own properties (and ignoring any properties owned by Jim Harrison=s second  
corporation, established in 1998), the claimant owns in excess of 2,000 acres scattered around  
Cumberland County (about 2,030 according to Mr. Ryle, and about 2,500 acres according to Mr.  
Omond=s notes of his interview with Mr. Harrison). Of these, at least 300 acres, and perhaps as  
much as 350 acres, were developed blueberry fields in December 1995. Further, the claimant moves  
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people and equipment from Southampton to properties owned by other people, carrying out the  
custom work which he has developed to a significant extent since 1995. The properties in which he  
carries out this custom work are located in Cumberland County, elsewhere in Nova Scotia and in  
New Brunswick. It may very well be that development of Westchester II East might sometimes  
involve equipment coming from Southampton and then remaining there for certain periods of time.  
Thus, heavy equipment normally at Southampton which was to be used at Westchester for more  
than one day might remain there until its use were to be complete. On the evidence before it, even if  
the claimant were to develop the Westchester II East property (particularly that east of the river, in  
the manner hypothesized by Mr. Ryle), and even if this development were to be for the full 400  
acres of developed blueberry land described in the Ryle Report (i.e., a total of 400 acres of  
developed blueberry land), the Board finds, on the balance of probabilities, that the claimant would  
not establish a new Ahome base@ at Westchester II C whether in the 24.5 acres of Westchester II  
West, as urged by Mr. Ryle, or someplace else.  
[645] Mr. Ryle=s report refers to Southampton as the Ahome farm,@ which has Mr.  
Harrison=s residence, and which contains facilities for berry storage (the receiving station), vehicle  
and equipment storage, maintenance and office space. The Ryle Report also states that the  
development of additional land in Westchester II East, together with that existing in Westchester II  
West and Westchester I:  
would allow Harrison to spread all movement costs from the home base to the existing  
Westchester lands over a much greater production area, thus significantly improving  
efficiency. [emphasis added]  
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The Board considers that this clearly contemplates that the Ahome farm@ is indeed the  
Ahome base.@  
[646] Mr. Harrison likewise agreed on cross-examination that his company=s Amain  
base of operations@ was in Southampton; moreover, he did not identify any other Abase of  
operations@ apart from that at Southampton.  
[647] Later in his oral evidence, however, Mr. Ryle began using the term Ahome  
base@ in relation to Westchester II West. He did this after counsel for the claimant, in addressing a  
question to Mr. Ryle, used the phrase Athe home base at Westchester Mountain.@ Thereafter in his  
testimony, despite having called Southampton the Ahome farm@ in his report, Mr. Ryle alluded at  
various times to a purported Ahome base@ in Westchester II West, to difficulties arising from having  
to service Westchester II East from that Ahome base@ because of the intervening right-of-way, and  
even to possibly establishing a further Ahome base@ in Westchester II East, in addition to the one  
purportedly in Westchester II West.  
[648] In his subsequent cross-examination, however, Mr. Ryle admitted that there is  
no home base at all in Westchester II West, or in Westchester I. He also affirmed that both these  
fields are serviced from Southampton: when asked whether Mr. Harrison, in coming to carry out any  
development of Westchester II East, would come from Westchester II West, or would come from  
elsewhere (referring to Southampton), Mr. Ryle said in reply that Mr. Harrison told him that  
the vast majority of time he's coming directly from Southampton . . .  
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Mr. Ryle also said that sometimes, it might be better to take the divided highway, although  
with heavy equipment, Mr. Ryle considered the shorter route would be Avery much  
preferable.@  
[649] Having acknowledged on cross-examination that there was no Ahome base@  
in Westchester II West or Westchester I, Mr. Ryle was, on redirect, once again asked a question  
which referred to Athe home base@ in Westchester II West; Mr. Ryle thereupon began once again  
referring to a Ahome base,@ or even to Atwo home bases,@ in Westchester II West and East.  
[650] The Board concluded from the submissions on behalf of the claimant that it  
was being asked to look at the claimant=s Westchester operation, to a great degree in isolation, as if  
the claimant=s operations were focussed upon Westchester (and especially Westchester II) in the  
same way as a more stereotypical farming operation in which all of a farmer=s holdings were  
contiguous, or if not entirely contiguous, were located close together in one area (as occurred, for  
example, in many of the Alberta cases referred to in Boyd, or as occurred, to a degree, in Johnson  
and in Williams). In the present case, the claimant, the Board finds as fact, does not have a home  
base at Westchester Mountain. Moreover, the Board sees, on the evidence before it, no probability  
that such a home base need ever be established, or would have been established if no expropriation  
had occurred.  
[651] The question of whether or not Westchester II West should properly be  
regarded (as urged by counsel for the claimant both explicitly in their submissions, and implicitly in  
questioning of Mr. Ryle) as the Ahome base@ is not a mere question of semantics. Acceptance,  
whether explicit or implicit, that the home base, or a home base, exists in Westchester II West, or  
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would exist if the development proposed by Mr. Ryle occurred, can have extremely significant cost  
implications. As described elsewhere in this decision, Mr. Ryle hypothesized (and the Board  
rejects) that equipment operated on Westchester II East (whether for blueberry harvesting or for  
other activities) would be driven back from Westchester II East all the way to the Ahome base@ at  
Westchester II West at the end of each work day; it would be driven back into position to resume  
work at the beginning of the following day. As the Board has already found, there is not, and never  
has been, a home base at Westchester II West C not even a barn, much less any other larger  
establishment. Mr. Ryle=s proposal that a Asecurity building@ be built on the site (to deal with the  
claimant=s assertions of increased vandalism, and to provide storage for equipment, lubricants, and  
C at one point in Mr. Ryle=s evidence at any rate C storage of berries, and which the Board has  
rejected) would, if built at Westchester II West, give the property more of an aura, or semblance, of a  
real home base, i.e., something which has at least a minimal resemblance to the stereotypical  
traditional farm, in which the farmer farmer returns to house and barn from nearby fields at the end  
of a day.  
[652] The Board sees a conflict on this point both within Mr. Ryle=s oral evidence,  
and between Mr. Ryle=s oral evidence and the balance of the evidence, including Mr. Ryle=s  
written report. Taking into account all of the evidence, the Board finds, on the balance of  
probabilities, that the claimant=s home base is Southampton; moreover, taking into account the  
preponderance of the evidence, the Board finds that it will remain there, as it always has in the past;  
moreover, the Board considers that the evidence does not establish, on the balance of probabilities,  
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any reasonable likelihood that the claimant would wish to establish, whether or not the expropriation  
had ever occurred, a second Ahome base@ at Westchester.  
XXII SECURITY BUILDING  
[653] In its closing brief, counsel for the claimant contended that  
the increased traffic and the severance of the Westchester II farm have [led] to a situation  
where a security building will be required sooner than later.  
The Ryle Report claims 60% of the cost of such a building arises from the expropriation.  
Mr. Sobey=s estimate for the building in question is $50,000, 60% of which is $30,000, the  
amount of claimed compensation on behalf of the claimant.  
[654] The claimant=s evidence about the nature of this proposed security building,  
or as it was also called, a Aservice centre,@ is not, in the view of the Board, consistent.  
[655] At page 12, the Ryle Report refers to a need to establish a Aservice centre@ to  
deal with the development of blueberry lands and harvesting of woodland on the scale hypothesized  
in that report, suggesting that Athe logical place@ for such a service centre is between the Cobequid  
Pass right-of-way and the Westchester Road. Mr. Ryle=s stated purpose for such a service centre  
includes storage of machinery and tools. He also said it would be for the storage of Afinal product,@  
presumably wood or blueberries.  
[656] In Mr. Ryle=s description of the Asecure building@ which he asked Mr. Sobey  
to give a price estimate on, he hypothesized a building which contains space for storage of Aa  
tractor, sprayer, mower, etc., together with some provision for supplies such as fertilizers sprays,  
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harvesting boxes, etc.@ There is no reference to storage of Aproduct,@ whether that be wood fibre or  
blueberries. On the balance of probabilities, the Board is not persuaded that a service centre or  
security building, as hypothesized in the Ryle Report, would likely be used for the storage of berries:  
instead, the Board concludes that the claimant=s operation is essentially one in which Southampton  
is the centre, and berries which are harvested anywhere by the claimant would be taken by the  
claimant either to its Southampton receiving station, and thence to a processor, or, if more  
convenient, directly to a processor.  
[657] In evaluating this part of the claimant=s compensation claim, the Board notes  
first that the claimant=s basic mode of operation, whether working on its own properties or on those  
of others, is to keep equipment and other necessary resources at its Southampton home farm, and to  
then move equipment, and sometimes people, as necessary to its various properties, or to the  
properties of third parties for whom it does custom work. A security building of the type urged by  
Mr. Ryle would, according to the evidence, be unique in the claimant=s operations, i.e., it is not an  
item which the claimant has in any other of its operations seen a need for and constructed. There  
was no evidence introduced of the need for such secure facilities in any of the other properties  
maintained by the claimant, or at properties which it either develops for third parties, or upon which  
it engages in production or harvesting activities for third parties. One may also consider that the  
need for a security building, as urged by Mr. Ryle, relates to the fundamental Ryle assumption that  
only access from the west is to be contemplated: if access were to occur from the east, via the Webb  
Mountain Road, to the potential blueberry lands in Westchester II East, the presence of the Cobequid  
Pass Highway (even if one were to assume that it did increase the risk of vandalism) might well have  
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little effect, given the presence of the gorge at the West Branch of the Wallace River and the lack of  
a need (in the event that an eastern access, which would be over much more level ground, were to  
be used) for permanent woods roads going up and down the western and eastern escarpments, and  
over the river.  
[658] In the view of the Board, the presence of a high speed highway like the  
Cobequid Pass Highway, or of a very low speed road such as a government land access road, does  
not in itself justify, on the evidence before the Board, on the balance of probabilities, a conclusion  
that an increased threat of vandalism thereby exists. Prior to the expropriation, the lands had been  
accessible, from the west, from the Westchester Road via the claimant=s own access road, and, from  
the east, from the Webb Mountain Road (via the route used by the claimant and his representatives  
in July of 1998). If no expropriation had occurred, and the claimant had developed the property  
(whether from the west or from the east, or both), the end result would have been a network of  
private access roads, kilometres long (but no one knows how many kilometres, as no design has  
been developed) being built by the claimant over the Westchester II East property, with associated  
risks of easier access by unwanted visitors to the Westchester II East property.  
[659] What evidence does the Board have to support the need, arising from an  
alleged increased vandalism associated with the Cobequid Pass Highway, for such a security  
building? We have the evidence of Mr. Harrison, who, in his oral examination, said that he felt there  
had been more vandalism since the Cobequid Pass Highway was put through the area. He said a  
security building would be used to store equipment at the end of the day, to keep it secure, but that  
he had not contemplated a need for such a building prior to the construction of the Cobequid Pass  
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Highway. The Board regards Mr. Harrison=s view that he had not perceived a need for any such  
building prior to the construction of the Cobequid Pass Highway as consistent with his practice  
generally in relation to all of his various properties scattered around Cumberland County, i.e.,  
equipment is stored normally at the Southampton home base, is transported to sites, whether they be  
for custom work, or sites owned or leased by the claimant, is left in the fields until the job is done,  
and is returned to Southampton, all without any need for security buildings. With respect to Mr.  
Harrison=s evidence on the alleged increase in vandalism, the Board regards it as, in essence,  
anecdotal, for this reason, and by reason of the somewhat reduced credibility which it considers  
should be accorded to Mr. Harrison=s evidence where it is not corroborated by another reliable  
source, gives it relatively little weight.  
[660] The Board also has the evidence of Mr. Ryle with respect to the alleged need  
for a security building. He asserted that the province had designated parts of the government land  
access roads near the claimant=s property as a snowmobile trail, and that he had observed the signs  
for such a trail in 1998. The evidence of Mr. Bieren is that no such designation exists. The Board  
prefers the evidence of Mr. Bieren on this point to that of Mr. Ryle, and finds that no such  
designation of a snowmobile trail by government occurred.  
[661] The claimant=s assertion of an increased threat of vandalism arising from the  
construction of the Cobequid Pass Highway would, if the Board were to find the assertion both  
credible and of a type which is compensable under the Act, have the effect of increasing the  
claimant=s cost (over those which the claimant ordinarily occurs in its operations elsewhere) in two  
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ways: the first way relates to the cost of constructing a secure building; the second way relates to the  
proposition that the claimant will not follow the usual practice of leaving equipment in the field at  
the end of a day, with use of it to resume at the same spot the following morning, but would instead,  
at the end of every day, return that equipment from wherever it is being used in Westchester II East  
to a security building to be built in Westchester II West. The next morning, the claimant would,  
under the Ryle argument, then have to take that equipment from the security building back to the site  
in the field. Depending on where the claimant was working on the subject property, the round trip  
distances involved in shuttling equipment between the site where work was occurring and the  
security building could be very significant indeed: if the development hypothesized by Mr. Ryle  
were to actually occur, and were to progress eastward, the distance from where the work is being  
done to the security building could approach 5 kilometres C as the crow flies, not counting the twists  
and turns and uphill and down dale (particularly at the river gorge) route which the claimant=s  
access roads would have to follow. The Board finds, on the balance of probabilities, that there is  
insufficient evidence for it to accept Mr. Ryle=s assertion that equipment being used in Westchester  
II East for development would ordinarily have to be returned each day to Westchester II West for  
storage. This part of the claimant=s claim appears to be related, in part, to the assertion of either the  
existence of, or need for, a Ahome base@ at Westchester and, in particular, at Westchester II West.  
As the Board has found elsewhere in this decision, it is not persuaded, on the balance of  
probabilities, of either the existence of a Ahome base@ anywhere at Westchester in the past, nor the  
likelihood that one would ever be developed there in future, with or without an expropriation. The  
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Board is not persuaded, on the balance of probabilities, by the evidence of Mr. Harrison or Mr. Ryle  
that a security building has become, as a result of the expropriation, or as a result of the construction  
or the operation of the Cobequid Pass Highway, necessary for either the development or the ongoing  
production and harvesting work of any blueberry fields which might eventually be established at  
Westchester II East. More succinctly, the Board sees, on the balance of probabilities, no causal  
connection between any aspect of the expropriation and the purported need for a security building.  
[662] Counsel for the respondent argued that the principle embodied in Sisters of  
Charity of Rockingham v. R., [1922] 67 D.L.R. 209, and also found in the subsequent Edwards v.  
Minister of Transport, [1964] 2 Q.B. 134 (C.A.), containing the so-called ARule in Edwards@)  
would reduce any claim in relation to a need for a security building arising from vandalism, and that  
the limitation period for claims respecting injurious affection would likewise simply exclude the  
claim. Given the Board=s finding of fact on this particular issue, the Board makes no finding with  
respect to the effects of the Rule, or the effects of the limitation period, upon the aspect of the claim  
currently under discussion by the Board.  
XXIII FAILURE TO DEVELOP ADDITIONAL LAND IN WESTCHESTER II SINCE 1995  
[663] Counsel for the respondent also points to the failure to do any development on  
Westchester II East (again, the lands east of the right-of-way) after 1995, even in the summer when  
whatever winter time safety issues may have existed in relation to the use of the government land  
access roads would not have been a concern.  
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[664] There is a similar lack of development in Westchester II West. Even if the  
claimant felt constrained by the limits of Mr. Ryle=s claimed buffer zone, there was acreage to  
develop which could, as the respondent says, have perhaps more than doubled the size of the  
blueberry field at Westchester II West. The blueberry field in Westchester II West is shown as about  
8.1 acres in the Keen plan. There are 24.8 acres in Westchester II West according to the Keen plan.  
Mr. Ryle=s claimed salt spray protection strips appear to have contained about 5.2 acres, as deduced  
from some of the data he supplied. While the Board has rejected the claimant=s assertions that a  
salt spray protection strip is needed on the west side of the Cobequid Pass Highway, if one accepts  
that assertion for the purposes of this discussion (i.e., that the claimant would have felt constrained  
from using the area in the claimed salt spray protection strip), there were, at a minimum, about 11.5  
acres of woodland with blueberry potential which existed on Westchester II, and could have been  
developed, had the claimant wished, in the years since 1995. Mr. Ryle also claimed the existence of  
2 to 3 acres of blueberry plants scattered through the salt spray protection strip on the west side of  
the Cobequid Pass Highway. Again, simply for purposes of this analysis, if the Board accepts that  
figure as well, 8.5 acres were available in Westchester II West for development into blueberry lands  
from 1995 until the time of the hearing. In his oral evidence, Mr. Ryle seemed to acknowledge a  
figure close to this, saying that after adjusting for his salt spray protection strip, Asomething like 7  
acres@ remained available for development.  
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[665] As a point relating to the consistency, and credibility, of the Ryle evidence,  
the Board notes Mr. Ryle=s testimony that Asomething like 7 acres@ remained available for  
development is inconsistent with his written report in which he asserted:  
. . . the field is now limited to something of its present size.@  
[666] The detailed calculation is as follows:  
Area of WWII West  
24.8 acres  
- 5.2 acres  
- 8.08 acres  
Less Area of Mr. Ryle=s Salt Spray Protection Strip  
Less Area of Existing Blueberry Field  
Less Mr. Ryle=s Claimed AFragments@  
-
3 acres  
Total  
8.5 acres (available  
woodland with blueberry  
potential)  
In other words, in the Board=s view, the acreage available for harvesting in Westchester II  
West could have been at least doubled from its existing 8.1 acres.  
[667] Moreover, the result would have been a field having a more regular, rather  
rectangular sort of shape which would, according to other of Mr. Ryle=s evidence, had made it more  
efficiently workable using machine methods. No such expansion occurred.  
[668] Moreover, this expansion could have occurred without the necessity of any  
travel at all upon the government land access roads, without the necessity for the construction of any  
new woods roads by the claimant, and would have occurred conveniently close to the Westchester  
Road, i.e., travel and access to the lands in question for the purposes of development present  
relatively little, if any, challenge. Further, the evidence is that the existing fields at Westchester I  
and II, and perhaps the Bogle property as well, were rock picked and leveled as part of the  
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claimant=s program since 1995 of improving existing blueberry fields, as well as opening up new  
ones. These activities would have placed workers and at least certain kinds of equipment in the  
immediate area of the at least 8 acres in Westchester II West of woodland with blueberry potential  
which were available for development.  
[669] The Board would be reluctant to infer too much from the above  
circumstances. Nevertheless, the Claimant=s failure to develop any new blueberry lands in  
Westchester II West (quite apart from the failure to do any work in Westchester II East) is not, in the  
view of the Board, consistent with a corporate or personal commitment to the Westchester II  
property of the level of depth or enthusiasm asserted in the Claimant=s submissions and evidence.  
XXIII REASONABLENESS OF EXTENT AND SPEED OF RYLE DEVELOPMENT PLAN  
[670] The respondent=s closing brief of March 27, 2003, states the following at  
paragraph 111:  
Other points arising from the evidence, from which it may be inferred that Harrison would not  
have proceeded as quickly as the development plan set out in Mr. Ryle's report include:  
(1)  
In 1994, Harrison started building its receiving station in Southampton. This was part  
of a future plan that Mr. Harrison had in mind for the company, separate and apart  
from his father's plans. On the other hand, the company took no steps in 1994 to  
begin to develop the property at Westchester.  
(2)  
(3)  
(4)  
(5)  
In 1995, Harrison did not have the equipment to build woods' roads. The company  
didn't acquire an excavator until after the date of expropriation.  
In 1995, no assessment had been done to determine the development potential of  
the lands.  
In 1995, no assessment had been done on the feasibility of crossing the West  
Branch of the Wallace River.  
In 1995, no assessment had been done to value the timber on the land.  
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(6)  
(7)  
In 1995, no actual analysis had been prepared on the economic feasibility of  
proceeding with the development plan and, it is submitted that to this day no  
considered cash flow analysis exists that takes development costs into account.  
To this day, no assessment has been made about the costs of constructing woods'  
roads on the property.  
(8)  
To this day, no assessment has been made about the costs of the river crossing.  
(9)  
No consideration has been given to the requirement for environmental permits or  
approvals.  
(10)  
Mr. Harrison had, at the time of expropriation, and for years after that date, not even  
walked the property from end-to-end.  
(11)  
In 1995, Mr. Harrison did not have any significant experience developing new  
blueberry fields from forests.  
(12)  
(13)  
In 1995, Mr. Harrison did not have any significant experience harvesting timber.  
Since the date of expropriation, the additional land between the existing field and the  
highway has not been developed. Even using Mr. Ryle's buffer zone, 10 or 12 acres  
remain undeveloped between the existing field on the Westchester Road and the  
buffer zone, which could have been used to more than double the size of the existing  
field.  
[671] With respect to Item (13), above, the Board considers that the likely area  
which has remained undeveloped, but which could have been developed, even taking into account  
Mr. Ryle=s buffer zone or other areas which he claimed were in need of protection, is about 8 acres.  
Apart from this relatively minor point, the Board considers that it essentially agrees with each of  
these items, i.e., that it considers each of these items to be a reasonable inference for the Board to  
draw from the evidence before it, on the balance of probability.  
[672] The plan in Mr. Ryle's report was developed by Mr. Ryle after the fact of  
expropriation. The claimant=s brief suggests at paragraph 16 (e) that Mr. Harrison had told Mr.  
Omond in June of 1996, that the corporate claimant Ahad been delayed about 18 months from its  
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scheduled development,@ meaning, in the context of the claimant=s submissions, that development  
of Westchester II East would have commenced in January of 1995. Similar assertions, including  
suggestions, explicit or implicit, that the claimant was ready to proceed with development at the  
beginning of 1995, appear in Mr. Ryle=s evidence, Mr. Ryle saying at page 17 of his report:  
Active development ceased in the year of the taking -1995 . . .  
The Board considers that a reasonable reader would infer from this that active development  
of lands in the expropriated lands and what the Board has termed Westchester II East had  
been ongoing by 1995, and was stopped by the expropriation in December of that year.  
[673] Eighteen months prior to June 1996 would be about January 1, 1995. On the  
evidence, Jim Harrison took control of the corporate claimant in 1995, but the evidence as to just  
when this happened was ambiguous, one of the counsel for the claimant asserting in cross-  
examination of Mr. Omond that Mr. Harrison had taken control of the corporate claimant in late  
1995. The Board does, however, find that Mr. Harrison had not taken control as of January 1995.  
When Jim Harrison later did take control the refinancing which he sought in his efforts to save the  
company from bankruptcy were not concluded until December of 1995. Further, certain kinds of  
equipment which would be necessary to embark upon the type of development proposed by the  
claimant for Westchester II East were not, according to the evidence of the claimant, purchased until  
1996. Further, Mr. Harrison, by his own evidence, had not engaged himself in timbering activities  
as of 1995. Thus, as of January 1, 1995, the date which Mr. Harrison purported to Mr. Omond that  
he was ready to proceed, he: first, lacked control of the company; second, was almost a year away  
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from the necessary financial arrangements to secure the survival of the company (which were not  
entered into until December of 1995, a matter of days before the expropriation itself occurred); third,  
did not have the equipment to embark upon the task; fourth, personally lacked experience in certain  
of the necessary skills. The Board finds, on the balance of probabilities, that any assertion by or on  
behalf of Mr. Harrison that the claimed development plan was to have commenced in January of  
1995 is inconsistent with the vast preponderance of the evidence, including even evidence supplied  
by Mr. Harrison himself.  
[674] In the view of the Board, the first possible year for development of the type  
hypothesized by Mr. Ryle was 1996, not 1995.  
[675] That Jim Harrison intended to ultimately deal with the various assets  
(including Westchester II) of the claimant in as effective a manner as possible is, in the view of the  
Board, established by the preponderance of the evidence. The Board does not consider that, on the  
evidence before it, it was established that either Jim Harrison had intended to develop the  
Westchester II East property (to the east of the river) in the manner proposed in the Ryle plan, or  
indeed that it would necessarily be reasonable for anyone to attempt to develop the property in the  
manner so proposed. Further, it is the view of the Board that the evidence indicates that he intended  
that any development would occur only as resources were available.  
[676] An additional factor which Dr. Eaton noted was that, in his experience, there  
are greater levels of development of new fields in years in which prices are highest and market  
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demand is strong. Thus, he considered that fluctuating farm gate prices and resulting fluctuating  
incomes, would Amost likely@ slow down development activities over a period of time.  
[677] Mr. Ryle asserts a 25 year development plan in his report. In Mr. Ryle=s  
report, Year 1 was 1995, i.e., the clearing of 25 acres of woodland without blueberry potential, and  
25 acres of woodland with blueberry potential (together with commencement of blueberry  
development work) would, according to Mr. Ryle, have occurred in that year.  
[678] The claimant was engaged in other work at the time, including, as already  
discussed, intensive refinancing negotiations, and the building of a new receiving station, located at  
its home base in Southampton C a facility which plays a major role in the claimant=s brokerage  
business, and enterprise which has nothing to do with Westchester II. Moreover, a theme of Mr.  
Ryle=s evidence was that the claimant would itself carry out the development of Westchester II,  
including timbering, with the single exception of the construction of the proposed crossing of the  
West Branch of the Wallace River. According to the evidence, an excavator, a very large and  
expensive piece of equipment, is an essential part of major development work, but the claimant did  
not own an excavator in 1995. It acquired its first, a used one, in 1996. Moreover, Jim Harrison had  
not, as of 1995, been personally involved in timbering activities of the type proposed here. Further,  
in 1995, Jim Harrison, apart from the tasks associated with replacing his father as head of the  
corporate claimant, was personally focussed upon refinancing to deal with the claimant=s then  
precarious financial position, a task which was not completed until the week before the actual  
expropriation, in December of 1995. On the balance of probabilities, the Board considers that  
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commencement of any kind of active development of any part of Westchester II East, whether by  
Jim Harrison, personally through the corporate claimant, or through the engaging of third party  
contractors, would not have occurred earlier than the spring of 1996.  
[679] Thus, in the Board=s view of the circumstances of the subject property, the  
earliest year for AYear 1" is 1996. For purposes of the present discussion, the Board will simply  
compare, without reference to the actual calendar year, the nominal Years 1, 2, 3, and 4 in the Ryle  
plan with what the evidence discloses of the actual property in Westchester II East.  
[680] As already noted, Mr. Ryle considered this plan, which he had discussed with  
Mr. Sibley, to be one which was achievable, but at the limits of the capacities of the corporate  
claimant, with, he said, particular challenges in Year 10.  
[681] The Board reproduces below the development plan which Mr. Ryle asserts is  
reasonable for the subject property (pages 11 and 12 of his report).  
Year*  
Proposed Development Plan  
1
put in access road on eastern side of river clear 25 acres blueberry land and 25 acres  
woodland  
2
put in access road on western side of the river clear 25 acres of blueberry land and 25  
acres woodland  
3
4
clear 25 acres of blueberry land and 25 acres of woodland  
clear 25 acres of blueberry land and 25 acres of woodland  
clear 25 acres of blueberry land and 25 acres of woodland  
clear 25 acres of blueberry land and 25 acres of woodland.  
clear 25 acres of blueberry land  
5
6
7
8
clear 25 acres of blueberry land  
9
clear 25 acres of blueberry land  
10  
clear 25 acres of blueberry land  
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Year*  
Proposed Development Plan  
11  
clear 25 acres of blueberry land  
12  
13  
14  
15  
16  
17  
clear 25 acres of blueberry land  
clear 25 acres of blueberry land  
clear 25 acres of blueberry land  
clear 25 acres of blueberry land  
clear 25 acres of blueberry land  
continued management of 400 acres blueberry lands  
Note *Year 1 in Ryle plan = 1995. Year 1 in Board view = 1996 at the earliest.  
[682] For clarity, the Board notes that Mr. Ryle refers in Year 1 to work on the  
Aeastern side of river,@ and in Year 2, to work Aon western side of the river.@ In the Board=s view,  
the evidence indicates that these references to Aeastern@ and Awestern@ are reversed: Mr. Ryle  
should have said Awestern@ with respect to Year 1, and Aeastern@ with respect to Year 2. In similar  
vein, paragraphs 9, 10, and 11, among others, in the claimant=s closing brief reverse Awest@ and  
Aeast@, e.g., saying that the Westchester II West small field lies on Athe eastern side of the  
Cobequid Pass,@ and saying that the large undeveloped parcel lies on the Awestern side@ of the  
Cobequid Pass Highway. The Board has simply changed all other such references, without  
comment, in its exploration of the balance of Mr. Ryle=s evidence, and in its references (anywhere  
in this decision, on any topic) to the evidence of witnesses, or submissions by counsel, who likewise  
inadvertently switched Aeast@ and Awest.@ In the view of the Board, this is an easy mistake for any  
witness or counsel to make, in the context of the present proceeding, and one which the Board  
suspects it may well have made at least once in the course of this decision.  
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[683] After examination of all of the evidence, and in particular, comparison of Mr.  
Ryle=s assertions with what the Board sees as the reality of the land which exists on the site, the  
Board perceives the Ryle plan, at least in its first few years as being, on the balance of probability,  
one developed with relatively little attention to the actual characteristics of the subject property.  
[684] The Board will illustrate this conclusion by relating Mr. Ryle=s plan to, first,  
the land area assumptions which were originally explicit or implicit in his report and the evidence of  
Mr. Sibley, and, second, in the light of the land areas which the Board has found, on all of the  
evidence, to apply to the property at hand. Whether under the original Ryle assumptions of area or  
the Board=s findings with respect to area (which are largely consistent with the later parts of Mr.  
Ryle=s oral and documentary evidence about the area of the land, as given at the conclusion of the  
hearing), the Board finds the Ryle plan inconsistent with the reality of Westchester II.  
[685] The land area as originally assumed by Mr. Ryle involves a scenario in which  
there are 50 acres between the right-of-way and the river, half of which is woodland with no  
blueberry potential, and half of which is woodland with blueberry potential. To the east of the river,  
going up the eastern escarpment until reaching higher ground at which blueberry lands are deemed  
to exist, the original Sibley/Ryle sketch plan shows this area to contain 124 acres. The Board will  
call this the Aoriginal land area@ scenario. With respect to the original land area scenario, it seems  
that the Ryle Report relies on the rough sketch and memorandum (Exhibits H-23B and H-25,  
respectively, which form part of the evidence of Mr. Sibley and Mr. Ryle), and which show only 50  
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acres between the right-of-way and the river (which, as noted, Mr. Ryle moved away from at the  
close of his testimony).  
[686] The area of the lands relevant for this discussion, as eventually determined by  
the Board, is 69.5 acres between the right-of-way and the river, 34.5 acres of which is woodland  
with blueberry potential, and 35 acres of which is woodland without blueberry potential. To the east  
of the river, to what the Board regards as the top of the eastern escarpment, is 91 acres. The Board  
will call this the Arevised land area@ scenario.  
[687] Mr. Ryle, as has been already noted, assumes a rate of timbering of 50 acres  
per year C a figure which Mr. Harrison considers to be too conservative, but one which is much  
greater than that assumed in the Athol Report. Ms. Haylock assumes that it would take three  
workers 100 days to get just 20 acres of woodland cleared, a rate of only 0.371 acres per day, rather  
than the 1 acre per day assumed by Mr. Ryle. In making a finding of fact in relation to the speed  
which is likely to be achieved, the Board prefers the evidence of Ms. Haylock over the evidence of  
Mr. Ryle. For purposes of the present analysis, however, the Board will continue to apply Mr.  
Ryle=s assumption of 50 acres of woodland being cleared by three workers each year.  
[688] With respect to the original land scenario, development of all the assumed 50  
acres of land on the west side of the river (i.e., woodland with blueberry potential and woodland  
without blueberry potential) would have commenced in Year 1. More particularly, all 50 acres of  
woodland would, initially, have been cleared of timber. Under the original land scenario, 25 acres of  
the 50 acres is deemed to be woodland with blueberry potential, and development of this into  
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blueberry producing land would have likewise commenced in Year 1. Mr. Ryle=s evidence is that  
his plan is at the limits of the capacities of the claimant. Mr. Ryle=s plan refers to, in Year 1, putting  
in an access road on the western side of the river, but ignores the fact that the access road in question  
would not simply be over the relatively gentle upslopes between the right-of-way and the top of the  
western escarpment, but would have to be constructed diagonally across the very steep slope of the  
western escarpment, down to the river at the bottom of the gorge. Moreover, Mr. Ryle=s plan  
assumes 50 acres of woodland will be timbered each year, and that this work will be done in 50  
days.  
[689] As the Board has found elsewhere, construction of the road on the eastern  
escarpment, which would be about .4 kilometres long, would involve cutting into the hillside so that  
the roadbed, which will necessarily be steeply sloped, will not also be dangerously tilted to one side.  
Mr. Sobey was not asked to explore any of the issues potentially associated with such a road,  
including its approximate cost, or even a rough estimate, and even a rough conceptual plan of the  
road=s construction. He was also not asked to determine the nature of the land over which the road  
would have to be cut, to see whether blasting would be necessary in order to ensure that the roadbed,  
cut diagonally across the slope, would still be level.  
[690] Moving to Year 2, Mr. Ryle simply says that the claimant would Aput in  
access road on the eastern side of the river.@ He makes no reference to the nature of that road. This  
access road is the one up the eastern escarpment, at least .7 kilometres in length, with a 16% grade  
running diagonally across the hillside, and having challenges and uncertainties which are similar to  
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those involved in the road down the western escarpment. Ignoring the challenges (costs, design,  
environmental issues, etc.) inherent in the construction of a road, the Board notes that, before  
construction of an access road on the eastern side of the river could begin, along with timbering of  
the lands on the eastern escarpment, a river crossing would first have to be constructed. The Board  
has explored elsewhere the significant imponderables with respect to this particular crossing, for  
which no design detail, estimated construction time, or even an order of magnitude for cost was  
provided.  
[691] Mr. Ryle=s report omits any reference whatsoever to the details of such a  
crossing; indeed, Mr. Ryle omits any reference to even the need to construct such a crossing, much  
less the presence of the gorge with its steep escarpments, and the challenges of building the access  
roads down the escarpments to the point at which the river crossing would be constructed.  
[692] In the light of all the evidence before the Board, the Board sees this as a  
significant omission, one which reduces the weight and credibility which can be properly attributed  
to the plan hypothesized by Mr. Ryle. The Board sees that weight and credibility as being further  
damaged when one contemplates what one faces on the eastern escarpment as it rises above the  
river. In his original land scenario, Mr. Ryle assumes 124 acres leading up from the river in the  
eastern escarpment, and assumes that 50 acres of woodland can be timbered each year. Of the 50  
acres he assumes will be timbered, he further assumes that 25 acres will be woodland without  
blueberry potential. The eastern escarpment, however, contains no woodland with blueberry  
potential at all. Following Mr. Ryle=s original land scenario, if 25 acres of woodland with blueberry  
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potential is to be cleared in Year 2, this must be land which is in the upland to the east of the top of  
the eastern escarpment. In turn, this means that Mr. Ryle=s plan actually assumes that the eastern  
escarpment road, at least .7+ kilometres in length, will be built all the way to the top in Year 2, that  
25 acres of woodland without blueberry potential will be timbered in the eastern escarpment, and  
that 25 acres of woodland with blueberry potential, located to the east of the top of the escarpment,  
will also be dealt with. It also assumes that the commencement of the development of these 25 acres  
into blueberry land will begin after clearing of the timber.  
[693] Under the revised land scenario, there are 69.5 acres, rather than 50, between  
the right-of-way and the west side of the river. Mr. Ryle=s plan would then tell us that, of the 69.5  
acres, 50 acres of woodland would be timbered in Year 1, 25 acres of which would be woodland  
with blueberry potential and 25 acres of which would be woodland without such potential. This  
would leave, for Year 2, 9.4 acres of woodland with blueberry potential to be cleared on the west  
side of the river, with development of the 9.4 acres to commence thereafter. It would also leave 10.1  
acres of woodland without blueberry potential to be timbered on the west side of the river in Year 2.  
This means that, for Mr. Ryle to reach his claimed quota of 50 acres in total (25 acres of woodland  
with blueberry potential and 25 acres of woodland without) in Year 2, the claimant would then clear  
14.9 acres of woodland without blueberry potential somewhere on the eastern escarpment (25 acres -  
10.1 acres = 14.9 acres), and 15.6 acres of woodland with blueberry potential to the east of the top of  
the eastern escarpment (9.4 acres of woodland with blueberry potential to the west of the river +  
15.6 acres = 25).  
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[694] Again, acceptance of either scenario assumes that, in addition to all of the  
work just described, a river crossing would have been designed and constructed (whether at the end  
of Year 1 or the beginning of Year 2), and the construction of the very challenging inclined, diagonal  
access road up the eastern escarpment, running about .7 kilometres in length, commenced and  
completed. After this, the claimant would have to commence a woods road extending from the end  
of the road up the eastern escarpment into the area of woodland with blueberry potential to the east  
of the top of the escarpment. On the evidence before the Board, given the topography of the site, the  
challenges inherent in its development, and the complete lack of any reasonable evidence from the  
claimant with respect to the cost and construction of the escarpment roads and the river crossing, the  
Board does not consider, on the balance of probabilities, this to be a credible proposition. There are  
significant challenges and uncertainties C to the point of complete unknowns C inherent in the  
design, construction and costing of the steep .4 kilometre access road down the western escarpment,  
the crossing with its 13 feet of fill beneath it, the turn of a little under 90 degrees over the crossing,  
and the construction of the long (about .7 kilometres) and steep access road traversing the eastern  
escarpment. On the evidence of Mr. Ryle himself, his plan of doing 25 acres of woodland without  
blueberry potential and 25 acres of woodland with blueberry potential, in itself, would tax the  
claimant=s resources to their limit. On the evidence before it, the Board does not think it all realistic  
to assume that such a road and crossing construction would not impose a very significant burden C  
not simply in finances and time, but in terms of management focus, and energy. It accordingly  
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considers that the Ryle Reports omission of any reference to the western or eastern escarpments or  
the crossing is unrealistic.  
[695] Between 1994 -1995 and 2001, the Keough Report notes that the claimant  
also developed 125 new acres of producing blueberry land which Mr. Keough costed at $1,500 per  
acre. With respect to his statement that it cost $1,500 per acre to bring new blueberry acreages into  
production, Mr. Keough testified that he got those figures Afrom discussions with Mr. Harrison and  
Mr. McIsaac,@ as being Atypical costs@ (see his table at p. 13 of his report, which shows  
Adevelopment cost, new blueberry acreage, $1500" and Alevelling and rock picking of producing  
fields,@ ($650). Mr. Keough=s conclusions as to these figures were reached after meetings and  
telephone conversations with Mr. Harrison, but, in his subsequent examination, Mr. Harrison  
insisted that Mr. Keough=s costs were those that would be incurred if a grower hired someone to  
have the work done; he said that the costs incurred by a company such as his, with equipment and  
people to do the work itself, would be Asomewhat less.@  
[696] In the present case, a reduced cost of development per acre is to the advantage  
of the claimant (since the claimant asserts that costs of development will be entirely paid by  
revenues from timber). Mr. Ryle asserts that Mr. Keough=s costs numbers are too high, saying that  
Mr. Harrison can do his own work and save money in that way. The Board notes, however, that in  
Johnson, Mr. Ryle asserted development costs of $3,000 per acre to develop an acre of fully  
developed blueberry producing land. In that case, compensation paid to Mr. Johnson would have  
been increased by higher development costs for blueberry lands.  
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[697] The Board notes that the evidence of Mr. Bradley is supportive of that of Mr.  
Keough, indicating that Mr. McIsaac provided numbers which were consistent with, or even higher  
than, those found in the Keough Report, indicating that land development including tree cutting  
would cost $1,970 per acre, with a possibility of it costing another $1,000 for additional weed work,  
mowing, burning, fertilization, and picking up sticks left behind. Specifically, Mr. McIsaac said it  
was $750 for cutting and removing trees and brush, weed wiping four times at $55 each for $220 per  
acre, and stump and rock removal and levelling, in Year 6, at $1,000 per acre.  
[698] As Mr. Keough notes, turning blueberry potential lands into lands which are  
actually blueberry producing lands significantly increases the market value of the lands involved.  
XXIV ACCESS FROM EASTERN END  
Western/Eastern Access and Speed of Development  
[699] The Board has concluded that it must keep in mind the direction given in such  
cases as Dell to ensure that adequate compensation of a claimant occur. After considerable  
reflection, however, the Board has also concluded that it must be mindful of the burden of proof  
which rests upon a claimant. In the present case, the Board considers that, for a development plan of  
the type hypothesized by Mr. Ryle to be, on the balance of probabilities, persuasive, the evidence  
supporting the possibility of such development would need to deal with either or both of two aspects  
of the property which the Board regards as peculiar to this property and essential to (from the  
Board=s perspective, be it right or wrong) a comprehension of the true nature of the claimant=s  
position. The Ryle approach asserts that the property would have been easily developable, with no  
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difficulty at all, if the highway had never been built: for example, as noted above, Mr. Ryle asserted  
that Mr. Harrison had only to extend his existing road over a Agentle@ hill, with no slopes Aeven  
approaching 6%@ to have access to the remainder of his holdings C entirely ignoring the gorge of the  
West Branch of the Wallace River with its accompanying very steep escarpments and river crossing.  
He asserts that the government land access roads, which are used by others, are such that they do  
not simply add miles and therefore cost, but make it impossible to access the property. In essence,  
the Ryle theory of compensation in the present case has as one of its essential assumptions that not  
only would a reasonable owner attempt to develop Westchester II East in its entirety, but that a  
reasonable owner would only develop the property from the west, not from the east.  
[700] The evidence, however, before the Board is, in its view, on the balance of  
probabilities, to the contrary: accessing and developing this property from the west has inherent, and  
very significant, challenges, important ones of which the claimant has left entirely unresolved. Even  
if the expropriation had never occurred, the challenges inherent in considering the possibilities of  
development of this property from the west, as hypothesized by Mr. Ryle are, in the view of the  
Board, manifold. On the balance of probabilities, on the evidence before it, accessing this property  
from the east rather than the west would be safer (as readily agreed to by Mr. Sobey in the course of  
his evidence) and cheaper C both in terms of the initial development costs and the subsequent costs  
of production and harvesting if one assumes that blueberry lands would indeed be developed there.  
The lion=s share of the lands with blueberry potential is not on the western side of Westchester II  
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East, but in the central and eastern part of it, i.e., in the hundreds of acres stretching east from the  
river to the eastern end of the property.  
[701] To argue that to harvest the timber, to develop the property, and to harvest  
blueberries in Westchester II East requires that the property must be approached from the west  
through the government land access roads involves certain assumptions which are inherent in the  
claimant=s case. The most important of these is that one must accept that construction by the  
claimant of the special types of access road which would be necessary on the western and eastern  
escarpments of the West Branch of the Wallace River, together with its crossing, would not only be  
commercially viable to construct, but commercially viable to continue to use, for the indefinite  
future, for the purposes of developing, and, subsequently, production work in, and harvesting of, the  
400 acres of blueberry lands contemplated in the Ryle plan. On the latter point, the Board notes  
once again Mr. Ryle=s repeated assertions of the dangers and difficulties inherent in attempting to  
haul heavy loads up the government land access roads, which have a maximum grade of 12.482%.  
The access roads on the western and eastern escarpments will be 20% and 16% respectively, with  
the slopes upon which they are built being steeper still, and the 20% and 16% being achieved only  
by moving diagonally across the slopes of the escarpments. The roads, particularly the western one,  
which is at the absolute limit according to the evidence, for construction of a permanent road, will  
also require that they be cut into the hillside. No one at this time knows the composition of the  
hillside (i.e., the soil and underlying material), or what type of blasting, if any, will be necessary  
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over a road which is not merely a few metres, but a few hundred metres long. The Board assumes  
that, on the evidence before it, the necessary environmental permissions would likely be granted, but  
notes that the claimant has not even explored the possibility of obtaining such a permit, much less  
commenced the process. The river crossing is, as is also explored in detail elsewhere in this  
decision, a crossing which, while regarded by Mr. Sobey as Afeasible,@ but one for which he did not  
produce any cost information, because of the instructions he had received from Mr. Ryle. Mr. Ryle  
represented that the crossing could be Aeconomically@ carried out, allegedly based upon Mr.  
Sobey=s evidence, but Mr. Sobey directly contradicted Mr. Ryle=s evidence on this point. The  
Board has no idea what such a crossing will cost, but the Board notes that Mr. Ryle himself  
suggested on cross-examination that simply obtaining a design for the crossing would have cost  
$5,000 or more. Mr. Sobey agreed on cross-examination that he had not looked into the matter of  
the crossing in enough detail to be willing to provide to provide the Board with even Aan order of  
magnitude@ for the costs of either the crossing, or even the roads. Once these roads and the crossing  
are built, vehicles will have to be operated on them, some of them large and heavily laden. The  
roads will have to be maintained, with the special erosion and environmental challenges inherent in  
roads which are both steep and cut into the hillside, with water rushing down steep hillsides to the  
river below. The Board also considers that, on the balance of probabilities, the evidence suggests  
that heavily laden trucks could reasonably be expected to encounter at least as much difficulty in the  
winter operating on the western and eastern escarpment roads and the river crossing as they would in  
operating on the government land access roads C and very likely more. The Board concludes from  
the evidence, including, but not restricted to that of Mr. Sobey, that accessing the lands with  
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blueberry potential lying to the east of the West Branch of the Wallace River would, on the face of  
it, be more safely done by accessing from the east C where no river gorges or other topographical  
challenges remotely approaching that of the West Branch of the Wallace River are present.  
[702] The Board notes that the use of temporary woods roads is not unknown in the  
industry, with the evidence being that any road built with a grade of more than 20% would have to  
be considered temporary, incapable of being used only once. This raises the possibility that  
temporary woods roads might be built on the western and eastern escarpments for no other reason  
than to allow harvesting of the wood. Given the steepness of the roads, the difficulties in  
constructing and maintaining them, the challenges presented by the crossing, a temporary woods  
road simply to harvest wood does not seem unreasonable.  
[703] Mr. Ryle admitted to Counsel for the respondent Crown on cross-examination  
that the claimant=s main base was in Southampton (close to 40 miles from Westchester) and that if  
Mr. Harrison wished to travel from Southampton to Westchester, he would take the  
Wentworth/Collingwood Road, after which he could either go slightly southwesterly onto the  
Westchester Road (to Westchester II West) or slightly southeasterly to the Webb Mountain Road  
(which passes near the eastern end of Westchester II East).  
[704] On cross-examination, Mr. Sobey said that he had not noted any physical  
constraints to accessing Westchester II East from the other end of the property, at the Webb  
Mountain Road, as he walked over it in July of 1998. He said that, from a construction point of  
view, access from the Webb Mountain Road to the east end of Westchester II East would be  
preferable, that Aquite probably@ such access would be safer than driving fully loaded with timber  
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up and down the escarpment of the West Branch of the Wallace River in winter conditions, and that,  
depending on where the claimant=s centre of operations was, it could be cheaper too. To put the  
proximity of the eastern end of Westchester II East to the Webb Mountain Road in context, the  
Board notes that the distance from the Webb Mountain Road to the eastern end of Westchester II  
East is a little over 1,000 feet, or roughly 340 metres C a distance somewhat shorter than the  
proposed road down the steep western escarpment, and less than half the length of the proposed road  
up the steep eastern escarpment.  
[705] Given that the base of operations of the claimant is Southampton (and not  
either Westchester I or II), it may be that delivering equipment from Southampton to the major part  
of Westchester II East, which is to the east of the West Branch of the Wallace River, would be more  
practically done and effectively done via the Webb Mountain Road. While the evidence before the  
Board on this point is not extensive, it might be possible to reach such a conclusion based on the  
evidence which is there. The Webb Mountain Road passes relatively close to the eastern end of  
Westchester II East. There is no evidence before the Board to indicate that either an access road, or  
a right-of- way could not be purchased over lands of others to Webb Mountain Road. None of the  
evidence presented on behalf of the claimant indicates that this possibility was considered to be  
impractical or unreasonable. The claimant simply chose not to explore it, without explanation for  
this decision C apart from, perhaps, suggesting that any duty to look into such a possibility, if one  
existed, was the Crown=s.  
[706] The Board now turns to the possibility of access to Westchester II East from  
the Webb Mountain Road. The Board considers it essential to approach this possibility with caution.  
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The claimant simply asserts, through Mr. Ryle, that access must occur from the western end of the  
property, because there is no access to a public road at the eastern end, i.e., no part of the eastern end  
of Westchester II East fronts on the Webb Mountain Road, nor does the claimant own a right-of-way  
leading from it to the Webb Mountain Road. Mr. Ryle asserts not only lost profits and increased  
costs if Westchester II East is developed from the west, as he asserts it must be, but that Westchester  
II can even be reasonably be deemed to be in a state of abandonment C if one accepts Mr. Ryle=s  
assertions about the inadequacy of the government land access road.  
[707] In short, it is an assumption, implicit or explicit, of the claimant=s case that  
access from the east is not something to even be contemplated. Certainly, there is, at present, no  
right-of-way, much less a road, from the eastern end of Westchester II East to the Webb Mountain  
Road. That access from the eastern end of Westchester II East has occurred previously, however,  
may be reasonably inferred by the presence of traces of woods roads at the eastern end of  
Westchester II East, including one leading to the Webb Mountain Road. Indeed, Jim Harrison, Mr.  
Sobey, and the others in the group which visited in July of 1998, exited Westchester II East onto the  
Webb Mountain Road at that point. The Board considers the evidence, on the balance of  
probabilities, to establish that, on the face of it, access to the woodlands with blueberry potential in  
Westchester II East, might be more safely and more cheaply achieved by means of an access road  
from the east, in place of access from the west. Even if one assumes that such a road would be  
purchased rather than merely acquired as a right-of-way, and even if one assumes Mr. Ryle=s  
asserted price of $3,000 per acre for developed blueberry lands, and even if one assumes that the  
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access road would be through such lands rather than through woodland (the latter appearing more  
likely on the evidence before the Board), a (hypothetically) 1,100 foot long access road which is 35  
feet wide would be less than an acre in area. Thus, purchasing the land upon which such a road  
would be built would cost, using Mr. Ryle=s market value of $3,000 for developed blueberry lands  
no more than $3,000, assuming a fee simple interest was acquired. If simply a right-of-way, as  
opposed to a fee simple interest, was acquired, the cost would not be greater; moreover the Board  
notes that a price of less than $3,000 is only a little more than half of what Mr. Ryle claimed would  
be the minimum cost of simply obtaining a design for the crossing of the West Branch of the  
Wallace River. It was suggested on behalf of the claimant that a potential vendor in such a situation  
would have significant bargaining power vis-a-vis the claimant, which strikes the Board as a not  
unreasonable suggestion. Even if, however, this led to the claimant having to pay, for a mere right-  
of-way, several times more than the per acre rate for a fully developed blueberry field, the sum of  
money which would be involved seems disproportionately small, in the face of the huge profits  
which Mr. Ryle=s plan urges us to accept will be made with the development of 400 acres of new  
blueberry lands in Westchester II East. If Westchester II East were to be accessed from the eastern  
end, rather than the western end, there would be much shorter runs by trucks and other vehicles over  
the claimant=s woods roads, if those trucks and vehicles came from the home base of Southampton  
to get to the main concentration of potential blueberry lands in the Westchester II East property.  
Such an approach would likewise permit easier access, over a shorter distance of private woods road,  
by supervisors and other workers coming from Southampton to carry out the ongoing operations on  
the property. Having accessed the property from the east, workers and equipment would be in a  
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position to travel to, and work upon, lands which were being cleared or otherwise under  
development, as well as land in which blueberries are now being produced and harvested C all over  
shorter distances of private woods roads, and without the difficulty if having to negotiate the western  
and eastern escarpments roads, as well as the river crossing. This is apart from the maintenance  
issues associated with access roads on the western and eastern escarpments. Further, the maps  
which are in evidence before the Board, together with the somewhat scanty evidence of distances  
alluded to in the course of some of the examinations, such as that of Mr. Ryle, establish, in the view  
of the Board, on the balance of probabilities, that access via the public highways from Southampton  
(the actual home base of the claimant) to the boundaries of Westchester II East would probably be as  
quick, if not quicker as it would be from the west. The latter considerations are quite apart from the  
additional convenience, relative ease, and in particular, safety of an eastern, as opposed to western,  
approach once one is on the Westchester II East property.  
[708] The Ryle Report asserts a claim involving hundreds of thousands of dollars in  
additional costs and forgone profits. Those costs and profits, however, are, almost entirely (with  
certain exceptions which the Board will deal with elsewhere in this decision) dependent upon the  
Board=s accepting that development of Westchester II East not only could only occur from the west,  
but indeed must occur from the west over the West Branch of the Wallace River, with all the  
inherent challenges of such an approach, both from the point of view of development and long-term  
operation. Acceptance by the Board of this hypothesis, involving the implications of such  
development, requires, in the Board=s view, that the claimant meet the burden of proof which rests  
upon it in any expropriation case, in one of two ways. The Board considers that meeting the burden  
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of proof with respect to the first way involves provision of a reasonable minimum standard with  
respect to the costing of the development of such escarpment roads, and crossing, and their  
economic operation thereafter. The second way relates to there being some evidence before the  
Board respecting the unavailability of access from the east.  
[709] The Board has explored the first consideration, the viability of the western  
approach, at some length and has noted in this decision what it sees as the significant deficiencies of  
the claimant=s case in that regard: for example, there is a paucity of design and costing information  
for the construction of the escarpment access roads, and for the crossing.  
[710] With respect to the second consideration, that of access from the east to the  
Webb Mountain Road, the Board considers that the threshold of evidence to be met by any claimant  
in meeting its burden of proof in circumstances such as this would be relatively low: if a claimant,  
for example, were to show that it had made an enquiry, or made an approach to a possible vendor,  
had not received a satisfactory response, and had concluded that further inquiries were pointless, that  
might indeed be enough to (absent rebuttal evidence from the respondent) allow the Board to accept  
the claimant=s perspective that an eastern threshold ought not to be contemplated, even in the face  
of the grave inherent difficulties in the western approach. In the present proceeding, however, the  
claimant did nothing whatever with respect to provision of even a minimum amount of evidence  
relating to this issue. Indeed, from the perspective of the Board, Mr. Ryle rather peremptorily  
indicated that access from the east was not a concern of his (or of the claimant), but rather something  
for the Crown to explore if it wished. This suggests that the burden of proof rests solely upon the  
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Crown in relation to the matter of access from the east. In the peculiar circumstances of this case,  
the Board does not agree. If indeed the impairment to access from the west in alleged consequence  
of this expropriation were to be as significant as Mr. Ryle claims, and if indeed the lost profits and  
additional costs were to be as large as he claims (with all the additional costs and lost profit which  
he claimed), the Board considers that a reasonable person would in such circumstances, engage in  
some exploration of the possibility (or impossibility) of acquiring a viable eastern approach, be that  
by way of a right-of-way or ownership of a woods road. In making this point, the Board wishes to  
emphasize that it does not wish to imply that a duty would rest upon a claimant in another  
expropriation to go to the point of establishing, on the balance of probabilities, that an obvious  
alternative access (such as this one) was not a viable option. In the present case, the Board merely  
observes that the claimant simply did not choose to provide any information about access from the  
east at all. In a case involving a different fact situation C for example, if the western approach had  
not been fraught with physical and financial challenges, such as those inherent in the crossing of the  
West Branch of the Wallace River C the Board considers that there might be a lesser, or even no,  
burden upon a claimant make even a cursory exploration of the matter of a possible alternative  
access.  
[711] The Board is not persuaded that the evidence before it established, on the  
balance of probabilities, that, if the expropriation had never occurred, development of the type  
hypothesized by Mr. Ryle, with the exclusively western access which is a key element of his plan,  
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would ever have occurred at all. Related to this point, counsel for the Crown remarked in his closing  
oral submissions that Mr. Harrison is:  
. . . in the position of a theoretical investor . . . These are not development lands we're talking  
about. This is not the case of spreading pre-existing fixed costs of . . . an existing farm over  
smaller land holdings. Mr. Harrison is a businessman. He's in the brokerage business. He  
contracts out his services to third parties. He undertakes blueberry operations throughout  
Nova Scotia and New Brunswick. He can and will make an investment decision about  
whether to develop these lands. If the return is not going to be high enough commensurate  
with the risk, I submit as a reasonable business person, he's not going to proceed. Maybe  
he'll sell the lands at that point. Maybe he'll do something else with them. I don't know. But I  
don't think it's proper to conclude that he's committed himself to this development program  
and that he has no choice.  
[712] In the view of the Board, it might be possible for a claimant of this type to  
recover even if it were to be found, as the Board considers as a matter of fact in the present case, that  
there was no plan for development of Westchester II East at the time of the expropriation, much less  
one with some reasonable preliminary detail.  
Development of New Lands Since 1995  
[713] The development of Westchester II East would, according to the Ryle Report,  
stretch the claimant=s financial and physical resources Ato the limit@. The development proposed  
by Mr. Ryle did not commence (because of the expropriation, assets the claimant), leaving the  
claimant free to undertake other activities. These included improving existing lands so that they  
could be harvested by machine. According to Mr. Keough, a total of 270 acres were so improved  
between 1994-95 and 2001, with development of 125 acres of new blueberry lands being  
commenced (again, according to Mr. Keough) during that time period. On the latter point, Mr.  
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Ryle=s evidence is that development of 70 acres of new blueberry land was commenced between  
1995 and 2002. The period 1995 to 2002, inclusive, encompasses eight years. If one assumes, for  
the purposes of this analysis, that there was indeed some development, as Mr. Ryle asserts,  
underway in 1995, then, at an absolute minimum, the claimant developed almost 9 acres per year for  
the 1995-2002 period (70 acres ) 8 years = 8.8). If 125 acres (Mr. Keough=s figure) were  
developed over the assumed period of eight years, rather than 70 (Mr. Ryle=s figure), then 15.6  
acres per year were, at a minimum, developed.  
[714] If the period of development was 1996-2002, inclusive, i.e., seven years, and  
125 acres in total is assumed, this is an average of 17.9 acres per year C and Mr. Ryle had said that  
his proposed development program, involving commencing the development of 25 acres of  
woodland with blueberry potential each year (as well as, the Board notes, 25 acres of woodland  
without blueberry potential), would stretch both the claimant=s financial and physical resources to  
the limit. Moreover, the development just summarized relates to the corporate claimant only, and  
does not include the development of blueberry land carried on by the second company established by  
Jim Harrison in 1998, which Mr. Harrison confirmed now has 200 to 250 acres of blueberry land in  
various stages of development, all of which were acquired after the date of expropriation.  
Development and Other Work by Claimant in Summer as Opposed to Winter  
[715] One important element of the claimant=s case is that the government land  
access roads are allegedly unusable all the time (leading to a state of abandonment, as urged by Mr.  
Ryle), or, alternatively, at least unusable for the winter. The implication of the latter allegation  
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appeared to be that development, such as wood harvesting, and other preparations, would occur only  
then. The Ryle Report says that the harvesting of wood would occur in the winter. The  
preponderance of the evidence, however, does not support the view that harvesting of wood can only  
occur in the winter, or that it occurs preferentially in the winter. The Athol Report simply remarks  
that the winter:  
happens to be the time of year that Mr. Harrison does his harvesting.  
Ms. Haylock gave oral evidence in relation to this point as well, indicating that wood need  
not be harvested in the winter. On cross-examination, Mr. Harrison conceded that timber  
could have been harvested from the property in the summer, which was consistent with Ms.  
Haylock=s evidence. Even if Mr. Harrison has a preference, for whatever reason, for doing  
such work in the winter, the Board also notes that it was urged on behalf of the claimant  
that if work was beyond the capacity of the claimant, because he was working on other  
activities, the claimant could contract to have such work done as well. It seems to the  
Board that the argument raised by counsel for the claimant on that point applies equally  
well here.  
[716] The Board considers that the evidence before it supports the view that  
operating a heavily loaded truck on a the government land access road if snow is down could present  
problems at the point of intersection with the Westchester Road, where there is a grade of 3.684% to  
8.082%. Apart from the intersection with the Westchester Road, however, the Board has found  
elsewhere that the government land access roads have a maximum grade of 12.58%, all falling  
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within acceptable standards. The Board finds that operating a heavily loaded logging truck on the  
western or eastern escarpment roads, in snowy conditions, with their 20% and 16% grades and a  
sharp turn at the bottom of the gorge, would present certainly equal, and, in the Board=s view on the  
evidence, significantly greater, challenges. Proceeding from those two assumptions, the Board  
concludes that the Westchester II East property, at least from the escarpments eastward, would not  
be timbered in the winter months, whether or not an expropriation had occurred. Timber could be  
harvested in the non-winter months, whether by the claimant or by persons working on his behalf. If  
timber could have been harvested, commencement of the development of the property could have  
occurred. None of these activities, however, happened.  
[717] While Mr. Ryle criticizes the government land access roads, in his own  
evidence, he admitted that those roads permitted access to occur by the fall of 1997. Even if one  
were to accept that government land access roads would not facilitate development of Westchester II  
East during the winter because of the steepness of the grades, particularly that approaching the  
intersection with Westchester Road, that leaves the bare fact that far steeper grades, which moreover,  
would have to be cut diagonally into a hillside (with both the construction and maintenance  
implications of such an approach), rather than simply running straight down a hill, would have to be  
negotiated to cross the West Branch of the Wallace River. The Board finds, on the balance of  
probabilities, that snowy conditions which would not permit a safe operation on the government land  
access roads (which are much less steep and, according to the evidence, not cut across a slope in the  
manner proposed for the crossing of the West Branch of the Wallace River) would be even less  
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likely to permit such operations on the escarpments of the West Branch of the Wallace River.  
Accordingly, if one were to accept for a moment the Ryle plan, and were to consider that profits  
would be lost (because of delay in proceeding with the project) at the rate which Mr. Ryle claims,  
the expenditure of $5,000 or more for a crossing design to Mr. Sobey, would seem, proportionally, a  
matter of little consequence. Having obtained the design, the claimant could then have constructed  
the necessary access roads through its property to the top of the western escarpment of the West  
Branch of the Wallace River, after which it could have constructed the roads diagonally across the  
western and eastern escarpments, together with the crossing itself. All of this could have been done  
C as Mr. Harrison admitted on cross-examination, and as is supported by the evidence of Ms.  
Haylock C in non-winter months. Turning to the question of the claimant having (according to the  
Athol Report) a preference for carrying out work of this type in the winter), it might be asserted on  
behalf of the claimant that it would only be in the winter that the claimant would have resources  
available to carry out this work, being busy with oher things in the spring, summer and fall. On this  
point, the Board notes that claimant=s counsel, in its brief referring to mitigation, asserted that, even  
if the claimant=s resources of manpower and time were stretched with the other enterprises upon  
which it had embarked, it could have (absent having been purportedly prevented to do so by the  
government land access roads) hired other persons to carry out the work of development.  
Accordingly, the Board considers that it sees no impediment to the claimant engaging, from the  
spring of 1998 onward, upon the development which the claimant (principally through Mr. Ryle)  
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urged the Board to accept as an intention which had only been thwarted by the alleged inadequacy of  
the government land access roads.  
[718] The Board notes that Mr. Sobey=s evidence did not point to any danger, in his  
opinion, in the use of the government land access road, even with the use of heavy logging trucks,  
except in slippery conditions such as when snow is down. That being the case, the Board sees  
nothing, on the evidence before it, to suggest that development of that type should not occur, or  
could not have occurred, in the years since the expropriation, in non-winter months. If the persons  
to carry out this work were to be persons who were to be hired by the claimant, then the work (if the  
Ryle plan were indeed a serious rather than a merely hypothetical one), could, on the balance of  
probabilities have been carried out in at least the non-winter months beginning in the spring of 1998.  
[719] Again, if the claimant was as eager to proceed as Mr. Ryle and Mr. Harrison  
claimed it to have been in January of 1995 (an assertion rejected by the Board as inconsistent with  
the preponderance of the evidence), execution of the plan could have begun no later than the spring  
of 1998. The Board notes, however, that it was not until July of 1998 that Jim Harrison, together  
with the other representatives of the Claimant (such as Mr. Ryle, Mr. Sibley and Mr. Sobey),  
inspected Westchester II East not just to look at the feasibility of the possibility of crossing the  
gorge, but to evaluate the blueberry potential of the property as a whole. As of the spring of 1998,  
then, on the evidence before the Board, the Claimant had not gathered information about the  
blueberry potential of Westchester II East (although he may, of course, have been making  
assumptions as to such a potential existing).  
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[720] The Board considers that, on the evidence before it, the claimant has very  
effectively developed a wide range of business activities since 1995. This is not a situation in which  
a farmer had before him or her only the possibility of developing one piece of land to which access  
has now been restricted in some way. Instead, the evidence, in the view of the Board, shows  
Harrison Blueberry to be, in fact, diverse in the nature of its own property holdings (which are  
spread over a wide area), and diverse in the range of businesses which it operates C which include  
not simply developing its own blueberry land and growing blueberries on it, but also in buying other  
people=s blueberries and selling them to processors, and doing custom work for other growers,  
including harvesting and trucking, in the period since 1995.  
[721] The Westchester II East property is a property which the claimant had not  
been using, had not begun developing, and had not even (at least under the claimant=s present  
owner) visited at the time of the expropriation. These characteristics are quite different from the  
characteristics of the property which was the focus of the expropriation proceeding in Williams. In  
Williams, the Court of Appeal in paragraphs 67 and 76 refers to the effect of the loss of the  
expropriated parcels upon the Williams operation, concluding that these parcels Aadded  
disproportionally@ to the remaining land, with their loss Adisproportionally@ reducing the value of  
the remaining land, so that the value of these parcels Ato the farm as a whole, configured as it was,  
could not be valued by the price it would bring on the open market@. At paragraph 76, the Court of  
Appeal quoted from the Ryle Report, saying that these parcels could be Aregarded as the >profit  
centre= of the farm operation,@ referring to their Ahigh inherent productivity, strategic location and  
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flexibility.@ The Board, in its decision, said that it was the opinion of Mr. Speed (the accredited  
appraiser who testified in Williams) that:  
. . . the expropriation took the heart out of the farm.  
[722] In Williams, then, the property under consideration was regarded as one in  
which the various parcels of land, particularly those which were expropriated, fulfilled important and  
overlapping functions.  
Limited Timbering Experience of Jim Harrison  
[723] The Board notes that Jim Harrison says that, while the claimant corporation  
has been involved in the sale of timber only Aa small bit@ from its properties, has been involved  
more extensively. Later in his examination Mr. Harrison said that he has sold timber on a roadside  
value on different occasions Asince 1998" note that Mr. Ryle claimed that the project would be  
underway in 1995; timbering would, of course, be the first step.  
[724] The Board finds that the claimant had not engaged in timbering in any  
significant scale at the time of the expropriation; moreover, the timbering in which Jim Harrison  
appears to have become engaged in a significant way began in 1998, and was through J.C. Harrison  
Limited, not through the corporate claimant.  
[725] The Board does not consider on the evidence before it, absent expert opinion  
to assist it, it can quantify what mitigation effort has been. The Board does, however, on the balance  
of probabilities, find that Harrison Blueberry is a company which has been using all of its resources  
efficiently and to the greatest extent possible in the period since Mr. Harrison took control in 1995.  
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XXV CREDIBILITY OF CLAIMANT=S EVIDENCE (RYLE REPORT AND  
TESTIMONY)  
[726] The Board is not oblivious to the fact that any expert C and, on a certain level,  
perhaps, arguably, all experts C may be influenced in some small degree, if only at a subconscious  
level, by the position taken by the person who has retained him. As Freiman and Berenblut say in  
AThe Litigator=s Guide to Expert Witness@ at page 42:  
It is completely natural for an expert to have a bias in favour of the party who has retained his  
or her services. While this mental association cannot be avoided, the expert must remember  
that in the eyes of the court, he or she has been called to give evidence to assist the court in  
reaching its determination. Accordingly, any opinion [a] witness gives should be that of a  
detached professional without any obvious bias in favour of one party or the other. That is  
not to say that in testifying, the expert should be prepared to concede everything . . . it is  
important, however, that your expert be prepared to make concessions where it is obvious  
that such concessions should be made. [emphasis added]  
[727] Counsel for the respondent described part of Mr. Ryle=s evidence as  
Ashocking.@ The Board will refrain from adopting such an adjective, but it was surprised and  
disappointed by a significant part of Mr. Ryle=s evidence. On this point, the Board considers to be  
of particular relevance the comments of McLachlin, J., as she then was, in her article, The Role of  
the Expert Witness, which is also quoted by Freiman and Berenblut:  
. . . experts must restore the Court=s faith in them by reaffirming their objectivity. An expert  
who contests too obviously for one side or the other loses his or her credibility. He reduces  
himself to the status of a hired gun, nothing more . . . The expert must always bear in mind  
that regardless of who is paying him, his duty is to tell the truth, his role to assist the Court. If  
he does less, he will fail his duty to the Court and, in all probability, his obligations to his  
client.  
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[728] In the view of the Board, Mr. Ryle=s evidence often went over the line  
dividing the role of the expert (who has been engaged by a particular party to, with reasonable  
objectivity, provide information upon which a tribunal may make a decision) from that of an  
advocate, or negotiator, on behalf of the party engaging him. In reluctantly reaching its conclusions  
on this point, the Board has been mindful of the role of Mr. Ryle, and the weight given to his  
evidence in such earlier proceedings as Williams, Coldbrook, and Johnson. Nevertheless, the  
Board finds, on the evidence before it in the present proceeding, that in many instances, Mr. Ryle=s  
evidence should be rejected entirely or given very little weight, and in all instances, given a  
significantly reduced weight over that which would ordinarily be given to an expert in a proceeding  
of this type.  
[729] The Board here notes that, in the ordinary course, a tribunal chooses between  
the evidence of two opposing experts, of similar qualification, in reaching an opinion on a particular  
point. In general, the Board need only (after due review and examination of the evidence in the  
course of its decision) say little more than that it prefers the evidence of one expert or the other: see,  
for example, MacIsaac.  
[730] If one party, however, successfully challenges the evidence of an expert, but  
that expert is the only person to have testified on a particular point or series of points, the Board  
loses the option of simply saying that it prefers the evidence of one party over the other, while  
tactfully making as little elaboration which may be necessary. In that event, the Board considers that  
it must do, explicitly, a more detailed analysis of various aspects of the evidence of the impugned  
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witness, and make findings with respect to credibility which are both more explicit and more  
extensive than are usually found: see, for example, a recent planning case, Elderkin v. Wolfville  
Town Council, [2004] N.S.U.R.B.D. No. 59 (Q.L.), 2004 NSUARB 65. This exercise has the  
undesirable C from the point of view of the Board at least C consequence that a witness who is the  
subject of such an analysis may see it as being unfair, or even hurtful. The Board accordingly  
regrets the nature and extent of the analysis which appears in this decision, but considers it  
unavoidable in the circumstances of this case, in the wake of what it saw as a successful cross-  
examination on many points of Mr. Ryle=s evidence, particularly ones relating to cost and revenue  
issues for which the Board had little, and often, no other evidence from other witnesses.  
[731] Counsel for the respondent explored in some detail a series of points which he  
considered cast doubt upon Mr. Ryle=s credibility, asserting that AMr. Ryle changed his  
assumptions to fit where he wanted the amount of the claim to be,@ and that, in general, in his oral  
testimony:  
Mr. Ryle was not responsive to questions, took every opportunity to make speeches and  
appeared to be more like a party trying to argue its partisan position than an objective expert  
witness.  
[732] The Board has already alluded to instances in which it ultimately concluded  
that Mr. Ryle=s evidence was less than credible. Included among these, for example, was Mr.  
Ryle=s evidence with respect to the alleged effects of salt spray, in which he claimed to have relied  
upon Mr. Sibley C but Mr. Sibley not only denied being an authority on the topic, but denied ever  
advising Mr. Ryle on the subject. In another example, with respect to a figure of 35% which Mr.  
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Ryle applied in important timber calculations (which supported, he asserted, the idea that the  
claimant would be able to fund its development costs from timber revenue), Mr. Ryle attributed this  
figure to the Athol Report, prepared by Ms. Haylock C but Ms. Haylock=s Report contained no such  
figure, and she denied ever having otherwise given such a figure to Mr. Ryle.  
[733] The claimant has not applied for, much less obtained, any environmental  
approval for the construction of a crossing over the West Branch of the Wallace River. In his  
testimony with respect to the width of the river, Mr. Ryle claims familiarity with the provincial  
environmental legislation. His apparently authoritative discussion of the Act referred to the  
definition of a stream in that Act, and that it required a Apretty substantial watercourse,@ Mr. Ryle  
arguing that any crossing built over the West Branch of the Wallace River would not be subject to  
any environmental requirements. In fact, the Environment Act contains no definition of a  
Astream@ at all, although there is a definition of Awatercourse@ in s. 3(be). Moreover, the evidence  
before the Board (including that of Mr. Bieren and of the Nova Scotia Forest Practices II Building  
Woodland Roads material, and exhibit) establishes that a permit is necessary for working in any  
watercourse wider than 18 inches, and the evidence of Mr. Sobey was that the riverbed was 12 to 15  
feet wide.  
[734] As a further example, Mr. Ryle testified on cross-examination that the 20%  
grade on the access road on the western escarpment could be cut in half, i.e., down to 10%, through  
the simple expedient of having it cross the western escarpment diagonally twice (Adog-leg it@),  
rather than only once. Mr. Ryle spoke with a measure of authority in saying that the grade could be  
cut from 20% to 10%, and the Board found his evidence, at the moment that he was testifying on the  
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point, to be, on the face of it, persuasive. When, however, Mr. Sobey (who was well qualified to  
give professional opinions about the topic, unlike Mr. Ryle), was subsequently asked in the course of  
his testimony about Mr. Ryle=s assertion of doglegging the road, he rejected it, saying:  
A.  
Q.  
A.  
I think the property's too narrow for that.  
So it's not feasible in that location?  
I don't think so.  
[735] Mr. Ryle also stated that Mr. Sobey=s inspection showed that the river and its  
escarpments could be Aeconomically@ traversed. In direct contradiction to this, Mr. Sobey said he  
had never been asked by Mr. Ryle or any other representative of the claimant to provide a cost  
estimate (Acost is not an issue,@ say his notes) for the construction, of either the crossing or of the  
access roads, nor had he been asked to produce designs; Mr. Sobey declined on examination at the  
Board hearing to even provide an Aorder of magnitude@ estimate of the cost.  
[736] According to counsel for the claimant, a Aheated discussion@ in August of  
2000 occurred between Mr. Ryle and an official of the Department of Highways about the state of  
the access road, before the report was finalized. In that discussion between Mr. Ryle and the  
Department of Highway staff, which Mr. Ryle characterized as an Aargument,@ Mr. Ryle, among  
other things, appears to have asserted to the Highway=s staff that:  
. . . my opinion is that it=s not safe to use that [government land access] road now at its  
present state of construction. And then [Graydon Bushel of the Department of Highways] got  
very excited and said, >. . . that road is perfectly all right.=  
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It seems at the time of this heated discussion or argument, Mr. Bushel had been given a  
copy of the draft Ryle Report (which was not put in its final form until January of 2001).  
Even at the time of the giving of his evidence at the Board hearing about two and a half  
years after the conversation, recollection of the conversation caused Mr. Ryle to become  
somewhat exercised: he suggested Mr. Bushel seemed to lack the capacity to understand  
some of the points Mr. Ryle had explained to him during their discussion, even though  
(from Mr. Ryle=s point of view) they were, as he put it in his testimony, Apatently obvious.@  
[737] At various points in his evidence, Mr. Ryle appeared to overtly portray  
himself in the role of advocate on behalf of the claimant, or as having taken the role of negotiator on  
the claimant=s behalf, rather than that of an expert. On the latter point, he justified in part, in the  
course of his oral examination, his having omitted to obtain or examine the financial statements of  
the claimant (discussed at more length elsewhere in this decision) because he saw himself as Ain a  
settlement resolution process.@ As a further example, Mr. Ryle referred to having adopted certain  
depreciation figures and assumptions Ain the interests of a quick settlement.@  
[738] At certain points, cross-examination of Mr. Ryle became excessively drawn  
out, as a result of what the Board ultimately concluded was, at least in some instances, an avoidance  
(whether unconscious or otherwise) of giving an answer which he felt would not be helpful to the  
claimant=s side. For example, he was questioned about his having assigned exactly the same price  
per acre to land on the west side of the West Branch of the Wallace River as he had to land on the  
east side. He had done that even though there is (as outlined in detail elsewhere in this decision)  
ample evidence to indicate that constructing roads on the western and eastern escarpments, as well  
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as a crossing of the river, would be a serious challenge. Mr. Omond had assigned a different value  
to woodland on the west side and east side of the river for this reason. Moreover, Mr. Ryle had  
emphatically asserted (correctly, in the Board=s view) that increased difficulty in access results in  
injurious affection, or a decreased market value of property: he had, of course, asserted this in the  
context of the government land access roads. The simple fact was that C whatever the reason C Mr.  
Ryle had assigned the same price per acre to land on either side of the crossing; whether his reasons  
were adequate or not, is irrelevant for the purposes of the present discussion. For Mr. Ryle to have  
acknowledged that he used the price on both sides of the river would not be to acknowledge that  
such an action was wrong. Mr. Ryle, however, seemed to have great difficulty in even  
acknowledging the nature of the question put to him on the point C much less, for a prolonged  
period, acknowledging what was clearly the answer to the question, i.e., that he had not  
differentiated between the prices.  
[739] In similar vein, Mr. Gervason, Mr. Ryle=s colleague, upon whom Mr. Ryle  
had relied for some of the material in the Ryle Report, was questioned about the fact that he had not  
seen the claimant=s financial records. He had concluded, he said, on the basis of his own  
experience, that such records (which had not been sought by him and Mr. Ryle, but which had been  
sought by Mr. Bradley and Mr. Keough) would not be useful. This led to the following exchange,  
excerpts of which are as follows:  
Q.  
A.  
You assumed they were misleading without even looking at them?  
I have testified earlier today as to the elements of farm accounting rules in this  
country, farm taxation rules in this country, which would lead one to be -- to have  
reservations about their use in doing calculations of the sort that we've done in this  
report. And, yes, it was my judgement that I would not solicit those records. And  
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again, part of that was based upon the process that I believed that we were in. I  
believed that we were in a settlement resolution process for which our records would  
facilitate that settlement. If I were to undertake an examination of the income tax  
records, knowing that they would not be particularly useful to me, I could spend,  
easily, a week of time on financial records that would add absolutely nothing to my  
examination. All they would do is add cost to the process. I was certainly not  
interested in adding cost to the client or to the Crown or -- in the examination of  
material that would not be particularly -- found to be particularly relevant to the  
determination of reasonable compensation.  
Q.  
A.  
Q.  
My question was, you assumed all that without even looking at them, correct?  
I made a judgement that that was the appropriate thing to do, and that's what I did.  
You assumed that the statements were not particularly useful and that they were  
misleading without even having looked at them, isn't that true?  
A.  
I chose not to use the financial statements based on the information I had at hand  
and my professional experience in the use or non-use of income tax records and  
knowing what their limitations were and the process that we were involved in, which  
was not to accumulate a lot of excess professional costs in arriving at a process of  
settlement. There is no simple answer to your question. It's not a matter of making  
an assumption and acting on that assumption. It's a matter of having professional  
experience in these matters and saying this is not a case in which, in my judgement,  
it is appropriate to spend a great deal of time examining farm financial information  
which, in the end, you will discount.  
Q.  
A.  
There's really no expense at all involved in asking to see financial statements to  
determine whether they are going to be useful or not, is there?  
There is no expense in asking to see the statements. The expense comes in  
examining them. You cannot ask -- you can't reasonably ask someone to provide --  
because the provision of statements, financial statements and other supporting  
information, is not a costless process. It involves someone -- someone's time, and in  
the case of an incorporated farm someone's accountant's time. So you are  
accumulating costs both for yourself and for the client that someone is going to be --  
is going to be responsible for. And if it's inappropriate to use it, then at some stage  
you have to say, well, no, I won't -- I will or I will not use those. And I made the  
judgement that, no, I wouldn't.  
Q.  
And you wouldn't have known that that exercise to analyze those financial  
statements for this particular company would be required unless you actually saw  
those financial statements. Correct?  
A.  
Q.  
A.  
Q.  
Are you entering that as evidence or are you asking me to?  
Do you disagree with that?  
I don't agree with you.  
You disagree with that?  
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A.  
I didn't disagree with you. I did not agree with you. It's your -- your deduction from  
what I did or did not do. And you're certainly entitled to have that deduction but I am  
not obliged to agree with you.  
Q.  
A.  
So you do disagree that, without seeing these financial statements, that you can, in  
fact, infer that you would have to go through that level of analysis?  
I didn't say I disagreed with you. I said I did not agree with you. [emphasis added]  
[740] Mr. Ryle, at a number of points in his evidence, appeared reluctant or  
incapable, of acknowledging ordinary factual errors in his evidence. Counsel for the claimant  
readily acknowledged in closing written submissions that Mr. Ryle had made a factual error in  
which he had doubled a cost figure used in the Athol Report. During the hearing, however, Mr.  
Ryle, while cross-examined at length upon the point, never seemed able to bring himself to admit  
that he had indeed inappropriately doubled the cost figure in question. Counsel for the Crown  
pointed out to Mr. Ryle that the Athol Report indicated that contractors calculate their rate on the  
basis of a one-way charge only, i.e., they do not charge for a round trip. The following is an excerpt  
from a lengthy exchange on the topic between counsel for the Crown and Mr. Ryle:  
Q.  
Your claim is twice as much as that allowed by the Athol report, correct?  
A.  
But they did that for one direction.  
Q.  
Yes. Because if you hire a contractor to do that, you're only going to pay for one  
direction, correct?  
A.  
Right. Possibly, yeah.  
. . .  
In another instance referred to elsewhere in this decision, Mr. Ryle attempted to justify a  
value per acre for land which he was asserting as being one which a client of his (Mr.  
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Johnson) in a former expropriation agreed with. In the present instance (i.e., relating to the  
doubling of trucking costs), Mr. Ryle attempted to justify his use of the doubled figure in  
similar fashion, testifying that his client in the present hearing, Mr. Harrison, agreed with Mr.  
Ryle=s having doubled the number, describing Mr. Harrison as a person who:  
. . . has some considerable experience with costs himself. He thought it was reasonable to  
charge for both ways too.  
Q:  
A:  
Rather than hiring a contractor if they could do it for half that amount?  
Well, that is your characterization of it. It=s not mine.  
[741] From the perspective of the Board, what had happened here was, on the face  
of it at least, simply a calculation error on the part of Mr. Ryle who had not noted that Ms.  
Haylock=s calculations of $13,072.96 were for a return trip, rather than one way, which should not  
have been doubled. The Board, on the evidence before it, makes no finding that this error on the  
part of Mr. Ryle was anything other than an innocent one. The Board does not see a simple error of  
this type in an expert=s report as being, in and of itself, a matter of great consequence: errors of this  
type (whether by experts, or by a counsel, or a tribunal, for that matter) are probably almost  
unavoidable in a complex case. For example, Mr. Omond in his evidence inadvertently cut Mr.  
Harrison=s claimed yield of two to three tons per acre in half, an error he readily acknowledged.  
Even though Mr. Ryle did not suggest there was anything wrong with either Counsel for the  
respondent Crown=s quotation of the Athol Report or the essential inference that he was drawing,  
Mr. Ryle appeared reluctant C by word, gesture, and tone C to simply acknowledge that the correct  
figure should have been half the one he used.  
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[742] Another example, but simply one of what the Board saw as a significant  
number of such instances, involved an alteration in a depreciation rate used by Mr. Ryle. Mr. Ryle  
had adopted a 10% depreciation figure which had been used by Mr. Omond in another context in the  
1996 Omond Report. After Mr. Omond, in his 2002 Addendum, had changed this rate from 10% to  
15%, Mr. Ryle, in an amending document filed in the course of the hearing, changed the  
depreciation which he used from 10% to 15%. When Mr. Ryle was asked if he had used his Abest  
judgment@ in his original adoption of the 10% figure, there followed what the Board perceived as a  
lengthy Acat and mouse@ cross-examination. Mr. Ryle seemed to express confusion with what the  
Board regarded as clear questions that had been asked more than once, and repeatedly providing  
answers which the Board did not see as being responsive to the questions he had been asked. One  
excerpt from this examination can be used as illustration:  
Q.  
Well, let me state it as plainly as I can. If you thought a different figure than 10  
percent should have been used on page 24, you would have used it, correct?  
A.  
I accepted his figure.  
Q.  
If you thought a different figure than 10 percent should have been used, you would  
have used it?  
A.  
But the 10 percent figure was there and we accepted it.  
Q.  
You disagreed with Mr. Omond before, and if you disagreed with him with the use of  
the 10 percent, you would have used a different figure, correct?  
A.  
Well, as I said, the position we took was to use the figure that he had suggested. In  
his wisdom, he's now seen fit to increase it, so I think we're properly justified in using  
his new number.  
Whether the figure of 10% is used at page 24 of Mr. Ryle=s report is correct or not, it was a  
number which, in the particular context in which it was found in the report, was one which  
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Mr. Ryle, as an expert, had presumably adopted for reasons he considered adequate at the  
time. Mr. Ryle automatically increased his figure for depreciation of the value of wood fibre  
from 10% to 15%, when Mr. Omond, the expert retained by the government, increased his  
figure for depreciation of the market value per acre of woodlots east of the right-of-way from  
10% to 15%. Mr. Ryle=s only justification for increasing his depreciation from 10% to 15%,  
after lengthy examination on the point, was merely that this new number Areflected@ Mr.  
Omond=s new number. The reason that Mr. Omond had increased his figure from 10% to  
15%, however, was that he had, as of 2002, become aware of the increased round trip from  
6 kilometres to 11 kilometres. Mr. Ryle, at the time of the preparation of his report in  
January of 2001, knew that the assumed round trip distance was about 11 kilometres, and  
knew this therefore when he adopted 10%. The Board remarks on this not to suggest that  
it was not as open to Mr. Ryle to change his evidence if he thought it appropriate as it was  
to anyone else, such as Mr. Omond. In the Board=s view, for example, it might have been  
entirely appropriate for Mr. Ryle to have made a change in his opinion, such as increasing  
the figure from 10% to 15%, if he concluded that the assumptions upon which he had relied  
had now changed, or for some other reason which caused him to conclude that an  
alteration was, in his judgment, necessary. His entire basis for increasing the figure from  
10% to 15%, however, was that the expert retained by the government had increased his  
figure from 10% to 15%:  
Q.  
A.  
You amended it to make it larger, Mr. Ryle.  
It does have the effect of making it larger, but he's the one that had increased the  
factor.  
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In the view of the Board, it is a reasonable inference that Mr. Ryle=s principal, and indeed  
only, stated reason for changing the figure was to increase the potential compensation  
which would be payable to his client. Experts are, of course, fully entitled to change their  
evidence in whatever manner they consider appropriate, in their professional judgment.  
Nevertheless, in the Board=s view, for such changes to be considered to be persuasive,  
there should be at least some reference to plausible evidence in support. Changes which  
increased the potential amount of compensation payable to his client were sometimes  
made with little or no justification for such increases, amounting to, in some instances, it  
seemed, little more than bald conclusions, unsupported by any plausible evidentiary base.  
[743] In DeJong (Litigation guardian of) v. Owen Sound General, [1996] O.J.  
No. 809, the Ontario Court of Justice (General Division) remarked, in relation to the evidence of a  
particular expert, that much of it:  
. . . bore the hallmark of condescension, rhetoric and argument. Viewed in its entirety, Dr.  
Sakinofsky's evidence in many respects was tendentious in character and less than objective.  
[emphasis added; para. 105]  
The Board considers that these words are not an inaccurate description of significant parts  
of the evidence given by Mr. Ryle in the present proceeding.  
[744] All industries can benefit from having persons who are vigorous advocates on  
their behalf, and this may be truer of agriculture than most other industries, given the difficulties  
which many have experienced in it in the last few decades. The Board thinks it likely that persons  
who have a wide and general knowledge of agriculture, an enthusiasm for it, and a wish to see it  
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fostered, can do much to advance the industry and those working in it. Nevertheless, a person  
testifying as an expert witness in a significant dispute such as this, ought not to be performing in the  
role of an advocate, whether of an industry or of an individual client.  
XXVI COMPENSATION FOR LOSS IN VALUE AND MARKET VALUE (THE ABEFORE  
AND AFTER@ ANALYSIS)  
[745] The Board had before it the Omond Abefore and after@ analysis, as well as the  
Ryle analysis. The Omond before and after analysis is, in the view of the Board, typical in format  
and in approach to appraisals of property commonly used in relation to matters such as this. The  
Board finds the Omond report to be credible, and has accepted its findings, with certain exceptions  
which are identified within this decision. The Board gives, on the other hand, the Ryle analysis  
much less credibility. The overall approach taken by Mr. Ryle is, in the judgment of the Board, not  
consistent with that generally recognized in relation to the valuation of property in circumstances  
such as this. Certain aspects of his approach have been identified in other parts of this decision. At  
this point, the Board will explore two relevant issues within the Ryle Report.  
[746] Mr. Ryle=s report reduced the value of lands to the east of the right-of-way  
because, as his report put it, of Athe impaired and more expensive access [arising from] on a  
prospective purchaser.@ While Mr. Ryle=s report says land to the east of the right-of-way is worth  
less than land to the west of the right-of-way, it does not say that land to the east of the river is worth  
less than land to the west of the river. Initially on cross-examination, Mr. Ryle said that Mr. Omond  
had not drawn such a distinction either, but later acknowledged that Mr. Omond had valued  
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woodland at $400 per acre on the west side and $350 per acre to the east. Mr. Ryle was repeatedly  
questioned about his having used the same figure for either side of the river, ultimately saying  
Apossibly the ones on the western side are worth a little bit more, but I think $3,000 is a good  
average figure.@  
[747] The Board will now turn to the matter of Mr. Ryle having depreciated  
undeveloped woodland, using a valuation which assumed it was worth as much as fully developed  
blueberry land. The Ryle Report argues that the Board should give 20% depreciation on the value of  
the lands in Westchester II East, because of impairment of access, and that this should be applied to  
the 740 acres which Mr. Ryle says is located there on the basis of 400 acres having been developed  
in blueberry lands and 340 acres in woodland. His calculation is as follows:  
400 acres developed blueberry lands @ $ 3000  
340 acres woodland @ $ 400  
$136,000  
$1,200,000  
Total  
1,336,000  
$267,000  
20% depreciation  
Thus, he depreciates by 20% the value of 400 acres of developed blueberry lands, valued at $3,000  
per acre. $3,000 per acre is the price which Mr. Ryle said should apply to fully developed blueberry  
lands. In 1995, at the time of the expropriation, none of the 400 acres valued for purposes of this  
calculation at $3,000 per acre were developed blueberry lands, nor had even initial steps in such  
development commenced C in fact, the land in question was simply woodland. He is thus asking the  
Board to depreciate the value of (and provide compensation for) something which did not exist at the  
time of expropriation in 1995 (i.e., 400 acres of blueberry fields) as if it did exist. Mr. Omond was  
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critical of this approach. The Board agrees, and considers it to be, in the circumstances of this case,  
inconsistent with the expropriation principles established by the Act and the case law.  
[748] Mr. Omond does agree that the value of the claimant=s land to the east of the  
right-of-way should be depreciated as a result of the highway having been constructed, but considers  
that the depreciation amount should be applied to lands which were actually there (i.e., lands without  
blueberry potential, and lands with blueberry potential), rather than lands that were not (the  
hypothetical developed blueberry lands found in the Ryle report).  
[749] Mr. Omond had originally set the depreciation at 10%, which he subsequently  
raised to 15%. The claimant=s counsel suggest that the 15% discount rate is appropriate, given the  
province=s undertaking towards the close of the hearing with respect to maintenance of the  
government land access road, thus reducing this claim to $200,400. The claimant further suggests  
that, if the Board considers the loss calculated in this part should only be deemed to be in relation to  
potential blueberry lands, rather than developed blueberry lands, the loss in value is $74,400. This is  
calculated as follows:  
400 acres x $900 =  
340 acres x $400 =  
$360,000  
$136,000  
Total  
$496,000 @ 15% depreciation = $74,400  
This approach is more consistent with Mr. Omond=s opinion, with one important exception. Mr.  
Omond considered that, assuming the only entry into Westchester II East would be from the west via  
the government land access road, the value of lands east of the West Branch of the Wallace River,  
given the challenges involved in crossing it, its steepness and the associated issues relating to road  
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construction, and movement of trucks, should be reduced from $400 per acre to $350 per acre, i.e., a  
reduction of 12.482%. Because Mr. Omond did not consider that any woodland to the east of the  
West Branch of the Wallace River should be valued as if it had blueberry potential, he did not  
provide any figure for this. This issue is discussed further by the Board.  
2002 Omond Report  
[750] Mr. Omond set as the market values per acre figures which the Board itself  
has adopted, for purposes of this proceeding: $400 per acre for woodland without blueberry  
potential; $900 per acre for woodland with blueberry potential; $2,500 per acre for fully developed  
blueberry land. Mr. Omond reduced the value of the lands on the east side of the right-of-way (i.e.,  
those now accessible from Westchester II West only by means of the Westchester Road and the  
government land access roads). In his 1996 appraisal, the reduction in market value that he used was  
10%, Mr. Omond saying that this figure reflected his opinion that:  
. . . a prudent person would expect to pay 10% less on average for these lands in the after  
situation to offset the inconvenience, and added travel time and costs to reach these lands.  
[p. 30]  
[751] In his 2002 Addendum, Mr. Omond increased the 10% severance damage  
figure to 15%. Mr. Omond valued all the woodland to the east of the river at $350 per acre, instead  
of $400 (his nominal value per acre for woodland without blueberry potential).  
[752] Ignoring Mr. Omond=s allowances made for salt spray protection strips (to  
which the Board has decided to give no weight for reasons explained elsewhere), Mr. Omond saw  
the highest and best use of the owner=s lands both before and after as remaining, for all except the 9  
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acres which he considered to be already in blueberry production and the 25 " acres which he  
considered to have immediate to short-term potential for blueberry use subject to clearing and  
preparation, to be woodland.  
[753] As the Board has discussed elsewhere, Mr. Omond had been instructed by his  
client in the fall of 2002 to assume a longer round trip (11 kilometres) and a larger acreage (760  
acres, rather than 500), in place of the round trip distance and total acreage which he had assumed in  
preparing his 1996 appraisal. In his 2002 report, Mr. Omond stated that he had now been told to  
assume an 11 kilometre round trip, rather than a 6 kilometre round trip, as assumed in his 1995  
appraisal. He said:  
We have increased our allowance for severance damage from 10% to 15%, which estimate is  
intended to reflect both the physical separation plus the nuisance and added travel cost of  
accessing the severed lands.  
13.2  
Market Value of Holding Before the Expropriation  
Front Lands (104 acres or 42 " ha.)  
- 9 " acres (3.64 ha.) in blueberry production @ $2,500/ac.  
$ 22,500  
- 25 " acres (10.12 ha.) of woodland with immediate to  
short-term potential for blueberry use subject to clearing  
and preparation @ $900/ac.  
$ 22,500  
$ 28,000  
- 70 " acres (28.23 ha.) of woodland with no immediate or  
short-term potential beyond forestry use @ $400/ac.  
Total before value of front 104 acres (42 " ha.)  
$
73,000  
Rear Lands  
- 656 acres (265 ha.) of woodland with no immediate or  
short-term potential beyond forestry use @ $350/ac.  
$ 229,600  
Total Market Value Before Expropriation  
$ 302,600  
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13.2  
Market Value After Expropriation  
Front Lands  
- 9 " acres (3.64 ha.) in blueberry production @ $2,500/ac.  
$
22,500  
- 32 acres (1.42 ha.) of woodland with immediate to  
short-term potential blueberry use subject to clearing  
and preparation @ $900/ac.  
$
$
3,150  
500  
- 5 " acres (2.02 ha.) of woodland to be retained as a  
Abuffer@ Alongside the new TCH @ $100/ac.  
- 6.813 acres (2.75 ha.) of woodland with immediate to  
short-term potential for blueberry use subject to clearing  
and preparation @ $900/ac. less 15% to reflect severance,  
or 6.813 acres @ $765/ac.  
$
5,212  
$
- 70 " acres (28.23 ha.) of woodland with no immediate  
or short-term potential beyond forestry use @ $400/ac.  
less 15% to reflect severance, or 70 " acres @ $297.50ac.  
23,800  
Rear Lands  
- 656 acres (265 ha.) of woodland with no immediate or  
short-term potential beyond forestry use @ $350/ac.  
less 15% to reflect severance, or 656 acres @ $297.50ac.  
$ 195,160  
Total Market Value of Lands in the After Situation  
$ 250,322  
13.3  
Loss in Market Value Resulting From Expropriation  
ABefore@ Market Value  
$
302,600  
AAfter@ Market Value  
$ 250,322  
Loss resulting from expropriation, including the Market  
Value of the expropriated lands and Injurious Affection  
from severance damage, etc.  
$ 52,278  
14.0  
14.1  
MARKET VALUE AND INJURIOUS AFFECTION  
- Estimated Separately  
Market Value of Expropriated Lands  
- 9.687 acres (3.922 ha.) of woodland with immediate  
to short-term potential for blueberry use subject to  
clearing and preparation @ $900/ac.  
$
8,718  
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14.2  
Injurious Affection  
a)Front Lands  
-
Loss in Market Value of 5 " acres (2.02 ha.)  
of potential blueberry lands required to be retained  
for a buffer zone alongside the new TCH @ $800/ac.  
$
$
4,000  
920  
-
-
Severance damage to 6.813 acres of potential  
blueberry lands @ $900-ac. x 15% for inconvenience  
and added travel time, etc.  
Severance damage to 70 " acres of woodland with  
no immediate to short-term potential for blueberry  
use @ $400/ac. x 15%  
$
$
4,200  
9,120  
Total severance damage, etc., to front lands  
b) Rear Lands  
-
Severance damage to 656 acres (265 ha.) of  
rear woodland with no immediate or short-term  
potential @ $350/ac. x 15%  
$ 34,440  
$ 43,560  
Total Injurious Affection  
Total Estimate of Compensation Payable  
$ 52,278  
15.0  
15.1  
15.2  
RECONCILIATION AND FINAL ESTIMATE OF COMPENSATION PAYABLE TO JIM  
HARRISON BLUEBERRY ENTERPRISES LIMITED FOR THE EXPROPRIATION OF 9.687  
ACRES (3.922 HA.)  
Market Value of Expropriated Lands  
- 9.687 acres (3.922 ha.) @ $900/ac.  
$
8,718  
Injurious Affection  
a) From loss in value to 5 " acres of potential blueberry  
lands required to be retained as a buffer from the new  
TCH 5 acres @ $800/ac.  
$
4,000  
b) From severance damage  
Total Injurious Affection  
$ 39,560  
$ 43,560  
Total Estimate of Compensation Payable  
$ 52,278  
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[754] In short, Mr. Omond considered that $52,278 in compensation was, given the  
assumptions he had been given in the fall of 2002, the appropriate compensation to pay to the  
claimant. This included the loss of the market value of the expropriated lands themselves, together  
with injurious affection of those lands to the east of the right-of-way.  
[755] In a second part of his addendum, which he provides what he describes as  
Ageneral observations and opinions@ on the Ryle Report, he rejects Mr. Ryle=s assumption of 400  
acres of blueberry lands at $3,000 per acre, when, as he puts it, the 400 acres were at the time of the  
expropriation Ain their natural wooded state.@  
2.  
At Page 19, the Ryle report applies a 20% loss in value because of severance to 400  
acres of blueberry land valued at $3,000 per acre, for a loss of $240,000, and  
against 340 acres of woodland valued at $400 per acre, adding another $27,200, for  
a total of $267,200 which they round down to $267,000.  
However, there had been absolutely no work on the 400 acre component of the  
severed lands toward blueberry use and, in fact, those lands were in their natural  
wooded state as of the December 1995 expropriation, and compensation for  
severance damage should be based on the land use in place as of that date.  
[756] When cross-examined on his attribution of $3,000 per acre (the figure for  
fully developed blueberry lands) to lands which were untouched woodland, Mr. Ryle said that, in his  
earlier evidence, he had  
suggested to the Board that if that is a more appropriate way of valuing it, we can use the  
present-day values and just apply the 20 percent figure to the $900 per acre which can be  
ascribed to the potential blueberry lands and then 20 percent reduction in the gross value of  
the wood fibre on there. And that comes out to $277,000, which is a little bit more than the  
figure that we have at the bottom of page 21.  
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In the view of the Board, this once again is simply Mr. Ryle=s component, or incremental,  
approach to valuation, this time of woodland. He attributes $900 per acre to land having  
blueberry potential, and then this time, a gross value (rather than even a net) for the wood  
fibre, thereafter applying a 20% appreciation figure to it. The market value of woodland  
with blueberry potential is, as the Board has found elsewhere, $900 per acre C not $900 per  
acre, plus some additional figure or figures, such as for a lost profit which allegedly could  
have been made by the owner had the owner harvested the wood from the lands in  
question.  
[757] Mr. Omond rejects Mr. Ryle=s abandonment scenario, but then, at page 8 of  
his Addendum, provides an analysis of the Ryle approach which assumes $900 per acre for potential  
blueberry land, as opposed to the $3,000 per acre which Mr. Ryle has asserted. Mr. Omond=s  
explanation and calculation appears in its entirety below:  
3.  
With regard to the so-called abandonment approach developed in the Ryle report, I  
believe it too is flawed. For instance, even if one was to assume that there had been  
400 acres suitable for blueberries prior to Highway=s expropriation and that total  
abandonment was the only course of action because of the severance, the loss  
would be calculated as follows:  
Before Value:  
400 acres of potential blueberry land @ $900/acre$ 360,000  
340 acres of woodland @ $350/acre  
Total  
$ 119,000  
$ 479,000  
After Value:  
740 acres of woodland @ $250/acre x 85%  
$ 220,150  
$ 258,850  
Effective Loss from Abandonment  
However, because of the long 25 year period required to develop 400 acres of  
blueberries as postured in the Ryle development plan, it is very unlikely someone  
would pay $900 per acre for 400 acres in one go.  
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[758] The Board assumes that Mr. Omond=s reference to the value of 340 acres of  
woodland (as being $400 per acre, rather than $350 per acre) reflects his view, which he  
implemented in the earlier version of his report, that woodland to the east of the West Branch of the  
Wallace River would be worth $350 per acre, rather than $400 per acre (the Board notes, for  
example, that at page 3 of the original report, he values land to the west of the West Branch of the  
Wallace River at $400 per acre, while he valued land to the east of the West Branch of the Wallace  
River at $350 per acre). In his original report, Mr. Omond valued Awoodland with immediate to  
short-term potential for blueberry use subject to clearing and preparation@ at $900 per acre, but all of  
that woodland to which he attributed blueberry potential was located on the west side of the West  
Branch of the Wallace River. In both his 1996 report and his 2002 addendum, Mr. Omond decided  
not to value any of the land on the east side of the West Branch of the Wallace River as having  
blueberry potential. This decision was based upon his view that the woodland to the east of the river  
(which he referred to as the Arear lands@) should be regarded as woodland with no immediate or  
short-term potential for blueberry development, and that the market would accordingly price it as  
woodland, at $400 per acre, with a reduction of $50 per acre because of its position to the east of the  
river. Mr. Omond, then, did not value any of the land east of the river as having blueberry potential,  
but treated it entirely as woodland without blueberry potential, from a market perspective. In the  
example which Mr. Omond has just given, most, although not quite all, of the 400 acres of potential  
blueberry land that he refers to in his rebuttal of Mr. Ryle=s abandonment scenario is on the east  
side of the West Branch of the Wallace River. In Mr. Omond=s explanation at item 3 at page 8 of  
how an abandonment scenario might be approached, he has ignored the location of the bulk of the  
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potential blueberry land, by implicitly valuing an acre to the east of the West Branch of the Wallace  
River at $900 per acre, the same amount that he valued such land to the west. He provides no  
additional commentary in his report as to why this would be so, given that he reduced the value of  
woodland without blueberry potential on the east of the river from $400 to $350 (ordinarily valued at  
$400) by reason of such location.  
[759] The opinion expressed by Mr. Omond at page 8 of his Addendum, that it was  
Avery unlikely@ (because of the 25 year period referred to in the Ryle development plan) that a  
buyer would pay $900 per acre for all 400 acres at one time was one upon which he was closely  
examined by counsel for the claimant, and one which he affirmed. The Board=s view of the speed  
of development, is that it would likely occur significantly more slowly than was suggested in the  
Ryle development plan.  
[760] Mr. Omond agreed on cross-examination that the letter of retainer (dated  
March 11, 1996 Exhibit H-57) sent to him in 1995 by Mr. Harland (Acting Director of Right-of-Way  
Claims) of DOT said:  
If injurious affection extends beyond the real estate valuation component to the extent that it  
is in the form of business loss, would you kindly let me know as soon as possible as it may be  
necessary to engage the service of a consultant having the specific expertise required to  
address these issues.  
It seems that no other consultant was so engaged by the Crown until the retention of Mr.  
Bradley in 2002.  
[761] In the course of his cross-examination, Mr. Omond said that his adoption of a  
10% devaluation, and subsequently a 15% devaluation, was a matter of judgment, and that it  
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reflected both the physical separation between Westchester II West and Westchester II East, and the  
additional travel distance: it was not related only to the additional travel distance. Accordingly,  
when the round trip distance which he was asked to assume changed from 6 kilometres (for his 1996  
report) to 11 kilometres (for his 2002 report) which is almost twice the distance, Mr. Omond did not  
double his percentage allowance, but increased it from 10% to 15% only. He said these choices of  
figures (10% and 15%) were a matter of judgment, and that, in his view, the 20% claimed by Mr.  
Ryle was, likewise in his judgment, Atoo high.@  
[762] In summary, Mr. Omond=s analysis points to compensation to the claimant in  
relation to its property at Westchester II in the total amount of $52,278.  
XXVIICLOSING ANALYSIS AND FINDINGS  
Statutory Interpretation and Expropriation Matters: Presumption in Favour of  
Compensation  
[763] Counsel for the respondent Crown argues that the scheme of the Act in  
relation to a claim such as the one in the present proceeding, is Anot one of indemnity.@ He notes  
that s. 2(3) of the Act, dealing with expropriation of family homes, states that A. . . strict market  
value is not in all cases a true compensation for a family home.@  
[764] Counsel for the respondent noted at page 1 of his closing submissions:  
The scheme of the Act, as it relates to the Harrison claim, is not one of indemnity . . .  
. . .  
Outside of situations involving the family home, a party suffering from an expropriation may  
not necessarily be in the same position after the expropriation as compared to before the  
expropriation.  
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[765] In this regard, one can contrast s. 2(2) of the Expropriation Act in Nova  
Scotia, which says that, with respect to a family home (not with respect to Aa money asset or  
investment@), the intent of the Act is to place the owner Asubstantially in the same position after the  
expropriation as compared with his position before the expropriation.@ Apart from this, however,  
the Act simply says, in s. 2(1), that Aevery person whose land is expropriated shall be  
compensated.@  
[766] The Board is also aware of the criticisms by the Court of Appeal for Ontario,  
in 747926 Ontario Ltd. v. Upper Grand District School Board, [2001] O.J. No. 3909, of the  
Divisional Court=s having approached an expropriation case Aas if it was presented with a personal  
injury matter, where the injured is entitled to be made as whole as a money judgment can achieve.@  
[767] Balanced against this, however, is the language used by the Supreme Court of  
Canada in Dell and the guidance provided by our Court of Appeal in Turner Drake. In Turner  
Drake, the Court of Appeal stated that:  
. . . in expropriation matters, the general principle is that the statutory provisions providing for  
compensation should be applied so as to provide the owner with indemnification from losses  
and expenses associated with the taking unless compensation is clearly limited by the  
relevant statutory provision. [p. 3]  
While Turner Drake relates to costs, the statement by the Court of Appeal is one of  
general application, in the Board=s judgment, and relates to compensation as a whole.  
[768] Corey, J., speaking for the majority of the Supreme Court of Canada in Dell in  
pages 51 to 52 states, in part:  
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The whole purpose of the Expropriations Act is to provide full and fair compensation to the  
person whose land is expropriated. [emphasis added]  
[769] In Dell, the Supreme Court of Canada said that:  
the power of an expropriating authority should be strictly construed in favour of those whose  
rights have been affected [upon].  
[770] Iacobucci, J., writing for the majority of the Supreme Court of Canada in, Re  
Rizzo & Rizzo Shoes Ltd., [1998] 1 S.C.R. 27], stated as follows:  
. . . Elmer Driedger in Construction of Statutes (2nd ed. 1983) best encapsulates the  
approach upon which I prefer to rely. He recognizes that statutory interpretation cannot be  
founded on the wording of the legislation alone. At p. 87, he states:  
'Today there is only one principle or approach, namely, the words of an Act  
are to be read in their entire context and in their grammatical and ordinary  
sense harmoniously with the scheme of the Act, the object of the Act, and  
the intention of Parliament.=  
Rizzo is, of course, a case dealing with a taxation statute, where as the Board is presently  
dealing with expropriation legislation. One might question, in the face of Rizzo, whether or  
not the Supreme Court=s directions, contained in such cases as Dell or Tener, are still  
intended to be the correct approach to interpreting an expropriation statute. The Board,  
however, has the guidance of two decisions of the Nova Scotia Court of Appeal since 1998,  
one in 1999 and 2004, both of which cite Dell with approval: Mariner Real Estate Ltd. v.  
Nova Scotia (Attorney General), [1999] N.S.J. No. 283 (quoting the passage by Corey, J.,  
from Dell, and also citing Wilson, J., in her concurring reasons in The Queen in Right of  
British Columbia v. Tener et al., [1985] 1 S.C.R. 533: AWhere land has been taken the  
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statute will be construed in light of a presumption in favour of compensation . . .@ [pp. 547-  
548]); Superior Propane Inc. v. Nova Scotia, [2004] N.S.J. No. 222.  
[771] Given the specificity of such cases as Mariner and Superior Propane, as  
well as Turner Drake, and the specificity of the Supreme Court of Canada=s direction in Dell, the  
Board will consider that, in interpreting expropriation legislation, a construction which favours a  
claimant, and, in particular, a presumption in favour of compensation, should apply.  
Injurious Affection Damages in Excess of Land Values  
[772] Compensation for injurious affection in expropriation matters may sometimes  
vastly exceed the relatively small value of the land which was actually expropriated. Thus, for  
example, in Gardiner Burton Agencies Ltd. v. Nova Scotia Power Corp. (1986), N.S.J. No. 488,  
the Nova Scotia Supreme Court awarded $187,000 for injurious affection (and $6,700 for business  
interruption) in an expropriation in which, it seems, both parties agreed that the value of the land  
actually expropriated was not more than $900. As a further example, in Watchichou v. Attorney  
General of Quebec et al., [1999] 67 L.C.R. 241, the respondent Attorney General of Quebec  
originally offered the appellant a total of $645, while the appellant claimed $845,025, with the  
Quebec Court of Appeal ultimately awarding $302,650.50.  
[773] Such awards may sometimes be to the discomfiture of the expropriating  
authority, and, perhaps, to the surprise of a lay observer, but may be entirely consistent with both the  
legislation and case law relating to expropriation.  
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Categorizing Losses: Issues of ADouble Recovery@  
[774] In interpreting expropriation legislation in the light of the facts before it, the  
Board is conscious of the duty upon it to use its best efforts to avoid either, on the one hand, failing  
to compensate for a legitimate item, or, on the other hand, making a payment which amounts to a  
double recovery. How items are categorized, in determining whether they are compensable or not,  
may be an important part of the task.  
[775] The difficulty in categorizing a claim, and in determining whether a particular  
item is appropriately compensable, is, in the view of the Board, amply illustrated by Dell. The  
Ontario Municipal Board concluded that the particular class of damages in dispute (those caused by  
the delay in the expropriation process were disputed as being recoverable as disturbance damages)  
was recoverable. The Divisional Court found that the loss incurred was not compensable under the  
Ontario Expropriations Act. The Court of Appeal agreed with the divisional court. The Supreme  
Court of Canada disagreed with the Court of Appeal C but even at the Supreme Court of Canada  
level, the opinion was not unanimous, with Iaccobucci, J., dissenting.  
[776] The question of just what type of award would amount to double recovery and  
what type of award would not was, not surprisingly, the subject of dispute between the parties.  
Paragraph 45 of the closing arguments of the respondent states, in part:  
While the Claimant has advanced separate claims for excess costs of development and for  
diminution of value of its remaining lands due to severance, the Respondent will treat these  
two items together because they are in fact the same claim . . . [claimant statement of claim]  
>The increased annual operating costs will result in a loss of fair market value for the  
remaining portion of the landholdings of the Claimant.=  
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[777] Counsel for the claimant dealt with the argument of double recovery or double  
accounting in oral submissions at the close of the hearing, asserting that recovery of excess costs and  
recovery for Apermanent injury to the land@ did not amount to double accounting. Counsel for the  
claimant asserted that there was no duplication, in that the claimant was seeking recovery for excess  
costs of development, but was not, he said, asserting a claim for excess costs for managing the  
blueberry field after development. He said the latter would be duplication, since, he asserted, a  
discounted market value deals with the permanent issue of a blueberry operator trying to service a  
blueberry lot after development. He asserted that the excess costs related to the Abusiness loss@  
component, which he said was dealt with under the injurious affection provisions in the Nova Scotia  
legislation, which also provide for a loss in market value to the remaining lands.  
[778] Counsel for the respondent states at paragraphs 45, 62 and 64 of his closing  
argument:  
. . . the Claimant itself, in paragraph 9 of its Statement of Claim, tied these two items together  
with the introductory sentence to that paragraph which reads, "The increased annual  
operating costs will result in a loss of fair market value for the remaining portion of the  
landholdings of the Claimant.  
. . . the Board should conclude that to compensate the Claimant for a loss of value due to  
access issues and to give the Claimant extra costs for those same access issues is double  
recovery.  
Ultimately, the difference between the majority and minority decisions in Williams may boil  
down to the amount of deference that each were prepared to give to the Utility and Review  
Board in first instance. That only underscores the need for this Board to specifically consider  
the basis for calculating each particular element of the claim to ensure that there is no double  
recovery.  
[779] The Court of Appeal, in Williams, said that the Board compensated the  
Williams for the loss in value of the lands owned by Williams and for injurious affection (for a total  
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of $55,600, including $38,300 for injurious affection) to the remainder. The Board also  
compensated the Williams for what it characterized as Aloss of income from lands in the taking by  
expropriation@ in the amount of $233,837.76, with a further $46,767.55 for loss of operating  
efficiencies, but not both.  
[780] A significant amount of the majority=s decision in Williams centred upon its  
evaluation of the correct standard of review to be applied to a decisions of this type by the Board,  
with the majority finding that the Board=s decision was not Apatently unreasonable,@ and  
accordingly should be left undisturbed.  
[781] The Board agrees with the assertion by counsel for the respondent Crown that  
a principal difference between the majority and minority decisions in Williams is the degree of  
deference which each accorded to the Board decision which was under review in Williams (indeed,  
this conclusion may be underscored by the fact that the majority, in reaching a conclusion different  
from that of Hallett, J.A., cited some of his own observations in an earlier decision). The Board  
considers that, paradoxical as it may seem, the correct course of action for it to follow in the present  
case (being a hearing at the Board level, rather than by the Court of Appeal, is not about standard of  
review) is the analysis of the correct approach to be used by the Board in the first instance, as put  
forward by Hallett, J.A., in his dissent. That dissent found that the Board had made a patently  
unreasonable finding on mixed fact and law which, in his view, Aunderpins the entire award,@ and  
that there was an element of double recovery in the award. He characterized the Board=s award as  
comprising:  
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. . . three principal components: (I) compensation for the land taken and severed, plus an  
award for injurious affection to the remainder of the farm as calculated by Mr. Speed in the  
total sum of $55,600; (ii) compensation for the loss of income that would be suffered by the  
Williams over the next 20 years in the operation of the farm as a result of the impact the  
expropriation had on the operation - $233,837.76; and (iii) compensation for loss of operating  
efficiencies by reason of the diminished capacity of the remaining property to accommodate  
sufficient nodes to be a cost effective beef-cattle operation - $46,767.55.  
It seems to me that the award should either be calculated on the value of the land taken plus  
an amount for injurious affection to the remainder as calculated by Mr. Speed or on the loss  
of income approach (the total of (ii) and (iii) above) as calculated by Mr. Ryle but not both.  
Income from a farm is income from a business that utilizes real estate. The income approach  
is a realistic method of calculating the value of a business of which real estate is the principal  
working asset (apart from good management); for example, a shopping centre. Leaving aside  
the comparable sales approach, the income approach to valuation of real estate is preferred  
over an approach based on replacement cost less depreciation/obsolescences.  
I would think that a valuation of the loss arising as a result of the taking of part of the Williams'  
farm operation ought to be calculated by application of the income approach as it is a  
business that revolves around the utilization of real estate. If such an approach produces a  
greater valuation than alternate approaches, an income approach with respect to efficiently  
operated farms, in effect, recognizes the management effort of the farm operator. Efficient  
operation of a farm is an appropriate consideration that ought to be recognized in the award.  
Therefore, the loss arising out of the expropriation would thus be fully compensated by  
payment of the $233,837.76 plus the $46,767.55. [paras. 105-108]  
Hallett, J.A., said that the amount of compensation to the claimants in Williams should  
have been either: $55,600 (the total loss in property value, including injurious affection,  
based upon the appraisal by Arthur Speed); or the total of $233,837.76 (for loss of income  
from the lands) and $46,767.55 (for loss of operating efficiencies).  
[782] Paragraph 46 of counsel for the respondent=s closing arguments notes that  
Mr. Omond devalued property east of the right-of-way to reflect both loss of continuity and extra  
costs in times associated with the longer route.  
[783] Counsel for the respondent, at paragraph 52 and earlier, argues that  
compensating an owner for a loss in market value because of increased difficulty in getting to a  
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property, as well as compensating an owner for the loss in value itself, amounts to double  
compensation or double recovery, and quotes Boyd at paragraph 109 with respect to claims for  
continuing disturbance which are closely associated with claims for injurious affection.  
[784] The respondent=s closing submissions refer to the Quebec Court of Appeal=s  
decision in Watchichou in which, in an expropriation affecting a salmon operation, the owner  
claimed compensation for loss in market value of the property and additional expenses to increase  
security to guard against salmon poaching in the river which was now crossed by a new bridge,  
together with an associated road, which were constructed as part of the project for which the  
expropriation occurred. The Quebec Court of Appeal concluded that:  
. . . a depreciation value of 10% taking into account the valuation of the market value of the  
property due to the increase in costs of security which are now required in order to fight  
against poaching is fair and equitable and is based upon the balance of probabilities of the  
evidence.  
[785] Some of the difficulties inherent in the categorization task are illustrated in the  
Court of Appeal=s decision in Powell. In that decision, the Court rejected the Board=s  
compensation of a claimant for engineering costs incurred in preparing plans for a proposed  
subdivision of lands, where the claimant had been compensated for the value of land having these  
characteristics, i.e., land with a existing subdivision plan. The Court of Appeal found that the  
Board=s decision to award engineering costs amounted to double compensation:  
The potentiality, as well as the adaptability, of the Land, were matters considered by both  
appraisers in determining market value. The Claimants would be doubly compensated if,  
having accepted Mr. Weatherby's estimate of market value for the Land, an additional sum  
should be added for engineering costs incurred, or lost profit.  
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The comments of the Land Compensation Board of Ontario in Ridgeport Developments v.  
Metropolitan Toronto Region Conservation Authority (1977), 11 L.C.R. 143 at 156 are  
apposite:  
The Board is unable to accept the proposition that a land developer, who is  
compensated for the market value of land expropriated from him, should be  
entitled to additional compensation for the loss of profit that might have been  
realized from a development which, but for the expropriation, might have  
taken place. In the opinion of the Board such a landowner is made whole by  
the compensation to which he is entitled for the market value. [paras. 63 and  
64]  
[786] In Powell, the Court of Appeal upheld certain of the Board=s findings, but  
reversed certain others. With respect to one of the grounds which it reversed, it suggested that the  
Board appeared, at least at one point, to have justified the particular award (for engineering costs and  
development profit) as Aa component of value to the owner,@ with the Court of Appeal concluding,  
at paragraph 50, that:  
. . . the Board committed an error of law when it made any award to the claimants based  
upon the concept of value to the owner. [citing Bank of Nova Scotia].  
Market Value and Income Approaches  
[787] In the view of the Board, the claims made on behalf of the claimant can  
ultimately be seen as relating to either market value issues, or income issues, although the  
claimant=s evidence (particularly that of Mr. Ryle) did sometimes (from the perspective of the  
Board, at least) appear to combine the two. The Board will attempt to deal with these two topics in a  
separate a fashion as possible.  
Income Approach  
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Ryle Costs Excessive  
[788] The counsel for the respondent states at paragraph 72 of his closing brief that  
Athat the cost claims advanced by Mr. Ryle are, across the board, excessive.@ Counsel for the  
respondent then refers to various items which illustrate his assertion. The Board will refer to only  
two of these, although it, in general, accepts each of these assertions. For purposes of the present  
discussion, however, the Board notes that counsel for the respondent asserts in his closing brief that:  
72.  
As for the excess costs claim presented by Harrison, the Respondent has several  
concerns and, in essence, submits that the cost claims advanced by Mr. Ryle are,  
across the board, excessive. Some of the Respondent's concerns include:  
(3)  
When it suits the Claimant's purposes, Mr. Ryle alleges that Harrison's costs  
are less than contractor rates for things like production and development  
costs for blueberries, and the cost to harvest timber. However, when it  
comes time to consider things that build up the claim, like costs for  
snowplowing, contractor rates are used. In the case of trucking costs, Mr.  
Ryle actually used the contractor rate provided by Ms. Haylock but then  
doubled it notwithstanding Ms. Haylock's evidence that these charges only  
apply one way.  
73.  
All of the excess cost which have been advanced are highly subjective, and lack  
objective back-up to support the figures put forward. The extreme danger inherent in  
such an approach is underscored by the so-called amendment made by Mr. Ryle  
during the hearing to page 14 of his report.  
[789] The Board considers that the assertions made by counsel for the respondent  
Crown in the two above-noted paragraphs are correct.  
Evidence from Various Experts and Lack of Appraiser  
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[790] The Board saw the evidence in this particular case as being, in certain aspects,  
unique and different from most other expropriations. In two instances (Mr. Bradley and Mr.  
Keough; Mr. Sobey and Mr. Bieren), the Crown and claimant had opposing experts in similar fields.  
The Crown, however, had an appraiser, and the claimant, remarkably, given that this was a complex  
expropriation proceeding, did not. The claimant, on the other hand, had an expert=s report from an  
agrologist (Mr. Ryle) as well as from a forester, and the Crown provided no evidence from any such  
experts.  
[791] The respondent=s closing brief refers to the difficulties in the cost evidence  
before the Board, describing Mr. Ryle=s evidence as asserting excessive costs for matters which had  
been delayed C for example, using contractor=s costs for trucking and then doubling them. On the  
other hand, when evaluating costs such as production and development costs, Mr. Ryle=s evidence  
was that the costs which should be applied were Mr. Harrison=s costs, and that these were much  
lower than those of other persons.  
[792] The Crown was, in the view of the Board, very effective, in the main, in its  
cross-examination of Mr. Ryle and his associated witnesses, Mr. Sibley and Mr. Gervason. Partly in  
consequence of this, and partly because of the conclusions reached by the Board in its review of all  
of the evidence, the Board=s confidence in significant parts of the evidence of those three witnesses  
was reduced; indeed, as the Board has noted elsewhere in this decision, it has sometimes attributed  
little, to essentially no, weight to some of the opinions (some of which related to very significant  
parts of the claimant=s case) expressed in, for example, the report of Mr. Ryle or his oral evidence.  
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[793] Mr. Ryle=s evidence, including his report, was the fundamental underpinning  
of the claimant=s case, but was unusual in form and substance, in the view of the Board. Evidence  
given orally was to the effect that portions of the Ryle Report were prepared by Mr. Ryle in reliance  
upon other experts, who had not filed any report. Mr. Ryle, in the totality of his oral and written  
evidence claimed, in effect, expertise in practically all of the areas testified about by all the other  
witnesses which were under consideration before the Board. While he said he relied on others (Mr.  
Sibley and Mr. Gervason) for the production of certain portions of his report, those others did not  
prepare reports, and he generally did not attribute to them in his reports the particular parts to which  
they allegedly contributed. In the extremely significant area of the potential damage of salt spray,  
Mr. Ryle=s claimed reliance upon Mr. Sibley was flatly denied by Mr. Sibley, who said that he had  
no expertise, and had given no advice, in the area. Moreover, even though Mr. Ryle said that he  
relied on certain other persons in preparing his report, the Board was told in closing submissions by  
counsel for the claimant that the opinions expressed in the Ryle Report must ultimately be regarded  
as those of Mr. Ryle.  
[794] If the Board had a viable alternative witness to turn to when it saw the  
evidence of Mr. Ryle and his associates as lacking in credibility (for example, with respect to the  
likely yield per acre for any new blueberry fields which might be developed), the Board turned to  
such a witness: in the example just given (yields per acre), it had Dr. Eaton, and data on blueberry  
yields experienced by the claimant and province-wide, as obtained by other witnesses, such as Mr.  
Bradley and Mr. Keough.  
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[795] With respect to such things as what additional costs might reasonably be  
incurred, as a result of the additional 11 kilometre round trip between Westchester II West and  
Westchester II East, the Board was left with little or no confidence in much of the related evidence  
of Mr. Ryle, but, in its judgment, no viable alternative. Dr. Eaton=s evidence did not address such  
issues at all. Ms. Haylock=s evidence addressed certain timbering expenses, but nothing in relation  
to developing blueberry lands beyond removal of timber, and nothing with respect to production or  
harvesting issues. She explained her opinion as to the cost of moving one piece of equipment onto  
the property, but gave no evidence (nor, it would appear, had she been qualified to) as to what types  
of equipment would be needed for blueberry development, production and harvesting activities, or  
where this might be relevant, how many days such equipment would be needed for such activities.  
This appeared only in Mr. Ryle=s report, and in a form and having a substance which the Board,  
ultimately, found in large measure unsatisfactory.  
[796] Decisions such as Dell, and Mariner, make it clear that full compensation of  
claimants is a goal of expropriation law. Nevertheless, it is equally clear that the burden of proof is  
on a claimant to provide sufficient evidence upon which the Board can, upon the balance of  
probabilities, base such a claim. The Board concludes that the income/cost evidence before it would  
not C had accepted it as plausible, on the balance of probabilities, the Ryle theory of developing the  
entire property from the west to east, exclusively from a western entry C form a safe basis for  
compensation in relation to such a development.  
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[797] In the course of preparing this decision, the Board went through a lengthy and  
labourious exercise (most of which it ultimately deemed to be futile, and which does not appear in  
this decision), of attempting to salvage from those parts of the evidence (most particularly that of  
Mr. Ryle) those aspects which it considered could be regarded as sufficiently credible. The  
objective was to see if it would be possible to use those aspects, together with certain parts of the  
evidence of the other experts who gave useful testimony to create a plausible income approach  
which could be applied to the present proceeding. This exercise involved constructing income and  
expense matrices with components derived from various parts of the evidence which it concluded  
was reliable. Ultimately, however, the Board decided this was not a viable approach. As already  
noted, much of the evidence of Mr. Ryle was successfully challenged in cross-examination. In some  
instances, it was also contradicted by the evidence of other witnesses, whom the Board regarded as  
credible, and the Board in some instances has made specific findings which reflected the opinions  
expressed by those witnesses. On many points, however, Mr. Ryle, or his associates, were the only  
witness to have expressed an opinion C for example, with respect to the number and kinds of  
vehicles (as well as frequency of visits, and duration) which might be expected to be necessary to  
carry on development work in blueberry fields, or production and harvesting work in blueberry  
fields. In certain instances, the evidence on these specific points was directly and fatally  
undermined, in the view of the Board. In other instances, the Board=s overall view with respect to  
the credibility of Mr. Ryle, and of his perceived failure to recognize the distinction between an  
expert and an advocate, meant that the Board had insufficient confidence in the credibility of any  
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remnants of his evidence which might otherwise be regarded as having remained unimpugned by  
cross-examination or contradiction.  
[798] For this reason, the Board has concluded that it not only would be  
inappropriate for it to rely upon Mr. Ryle=s compensation claim based upon income, but  
inappropriate for it to attempt to construct an alternative model.  
[799] Courts or tribunals on occasion find themselves dealing with an expert=s  
report upon which they feel they cannot rely. In Bridges (referred to earlier by the Board), the Court  
essentially rejected in its entirety an appraisal report by a Mr. Goodwin, saying:  
I do not intend to set out Goodwin's report assumption by assumption and conclusion by  
conclusion and explain why I reject or accept each. It will be sufficient to point to major errors  
in his report to show that it is so flawed no reliance can be placed upon it.  
[800] The centre of the claimant=s case is the theory of compensation put forward  
by Mr. Ryle. This contains both market value and income aspects, which Mr. Ryle (in the view of  
the Board) on occasion mixed together in a way inconsistent with principles stated by the Court of  
Appeal. For example, he insisted on adding to the market value per acre of a woodlot a sum which  
he had calculated as being the net value of timber which could have been cut from the lot by the  
owner prior to sale, but was not; the Board found this approach to be inconsistent with the legislation  
and the case law. The market value analysis will be discussed in detail by the Board in paragraphs  
below.  
[801] The Board will here refer to what it will call the income side of the claim. Mr.  
Ryle=s income theory of compensation was based in large part upon his claim that a very large  
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profit would result from the development of the claimant=s property in Westchester II East (i.e., to  
the east of the Cobequid Pass right-of-way), and that very large expenses would be created in  
relation to that development by virtue of the alleged deficiencies, and increased travel time, arising  
from the government land access roads which, together with the Westchester Road, now join  
Westchester II East and West.  
[802] Dr. Eaton, a person with a decades long track record in the blueberry industry  
(unlike Mr. Ryle), reviewed in his evidence Mr. Ryle=s various opinions on such matters as the  
price of blueberries, the likely yield (in pounds per acre) of blueberry fields, and likely speed that  
new blueberry fields could be developed from forest, and rejected them, describing, for example,  
Mr. Ryle=s yield estimates as Ainflated.@  
[803] Mr. Bradley used similar language, saying that the Ryle Report=s claimed  
profit figure of $950 per acre was Anot reasonable@: he found that the likely gross revenue per acre  
would be less than Mr. Ryle=s claimed profit.  
[804] Mr. Keough, retained as was Mr. Ryle by the claimant=s counsel, did not use  
such adjectives as Aunreasonable@ or Ainflated@ in referring to Mr. Ryle=s report, but nevertheless  
refrained from using key figures in the Ryle Report, in doing his analysis. For example, while Mr.  
Keough did not explicitly reject it, he chose not to use Mr. Ryle=s claimed Afarm gate@ price of 75  
cents C a price passionately argued by Mr. Ryle, at least in the earlier part of his testimony, but one  
which has never been reached, in any year ever, according to the preponderance of evidence before  
the Board. Mr. Keough adopted 50 cents instead. Asked about the likelihood that certain of Mr.  
Ryle=s key assumptions with respect to price, yield per acre and profit per acre (specifically, $3,000  
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per acre for land, 4,000 pounds per acre as a yield and $950 per acre per year of profit) were likely to  
be found in the real world, he said, AI don=t think so,@ saying that buyers would be Alined up@ to  
buy such a property if it actually existed.  
[805] The Court in Bridges went on to review just two items which it considered to  
be Amajor errors@ to justify its decision to reject the Goodwin evidence. In the present proceeding  
(both in the paragraphs below and elsewhere in this decision), the Board has referred to many more  
than the two items identified in Bridges. The Board recognizes that using such numerous references  
increases the risk that some of those references may be perceived as being in error; nevertheless, the  
Board has considered the exercise to be appropriate, in large part because of its concern, and initial  
reluctance, in rejecting the evidence of a witness whose evidence has previously been accepted by  
the Board either in its entirety, or nearly so, on such matters as severance damages arising from  
construction of a highway in an agricultural operation (Williams), damage by salt spray to fruit trees  
(Coldbrook), and damage by salt spray to blueberry plants (Johnson).  
[806] In the present instance, however, the Board considers that the evidence before  
it C whatever the evidence may have been before other tribunals C is such that it cannot be the basis  
of any reasonable analysis using the income approach (with its related claims dealing with the  
purported need for repeated trips by tractors, claims for float vehicles, etc.) to this claim in a way  
which could result in numbers upon which the Board would feel confident in placing any degree of  
reliability.  
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[807] The Board has also hesitated in reaching this conclusion for another reason:  
the Board is conscious of the conclusion drawn by Hallett, J.A., in his dissent in Williams, in which  
he said, in part,  
Leaving aside the comparable sales approach, the income approach to valuation of real  
estate is preferred over an approach based on replacement cost less  
depreciation/obsolescences.  
I would think that a valuation of the loss arising as a result of the taking of part of the Williams'  
farm operation ought to be calculated by application of the income approach as it is a  
business that revolves around the utilization of real estate. If such an approach produces a  
greater valuation than alternate approaches, an income approach with respect to efficiently  
operated farms, in effect, recognizes the management effort of the farm operator. [paras. 107  
and 108]  
The Board accordingly concludes that a decision to reject a calculation of loss based upon  
the income approach is not one to be taken lightly. In the present instance, however, the  
Board considers that this is the correct decision for it to take, because of the unreliability of  
the components of the income approach, for certain important elements of which Mr. Ryle  
is the only source.  
[808] The Board, having considered all the aspects of Mr. Ryle=s proposed  
development plan, concludes that there is insufficient evidence before it for it to, on the balance of  
probabilities, regard the plan (particularly with respect to those aspects of it which relate to the lands  
to the east of the river) as reasonable and, in particular, as a reasonable expression of the highest and  
best use of such property; the idea of Ahighest and best use@ is explored further below at the  
Board=s discussion of its adoption of Mr. Omond=s Abefore and after@ analysis.  
[809] If the Board had accepted the Ryle plan for development to the east,  
compensation relating to the income approach would deal with a hypothetical profit of such an  
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operation, arising from revenue and, in particular, expense items, from which could be deduced a  
calculation of loss on the income approach. As the Board has already indicated, however, such an  
award would necessarily have to be based in certain critical ways upon components of Mr. Ryle=s  
income model, and in the view of the Board, his evidence with respect to these points cannot be  
relied upon.  
[810] Acutely aware as it is of the direction in Dell and other cases to fully  
compensate owners of expropriated land, and of the observations of Hallett, J.A., in Williams with  
respect to the importance of the income approach in agricultural operations, the Board has chosen to  
make a final brief analysis, on a very global or macro basis, of the Ryle income claims relating to the  
claimant=s property, as they were reproduced, and then modified somewhat, by Mr. Bradley in the  
schedules in his report.  
[811] The Bradley approach, while it contained vigorous criticisms of certain  
aspects of Mr. Ryle=s report, explicitly accepted without examination, in similar fashion to that of  
Mr. Keough (for purposes of the tabular review conducted by Mr. Bradley) the various assumptions  
which Mr. Ryle had used. With respect to the excess cost of development and operation, Mr.  
Bradley substituted his discount rate of 15% for the 2.5% rate applied by Mr. Ryle, thereby reducing  
the claimed additional costs of development, which originally, according to Mr. Ryle, totaled  
$238,820. At a 2.5% discount rate (as advocated by Mr. Ryle), this yielded a claim for additional  
costs of development of $165,909 (Schedule 7A of the Bradley Report), while applying a discount  
rate of 15% yielded a present value of excess development costs of $47,000.  
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[812] With respect to Mr. Ryle=s claim with respect to the delay of the development  
program, Mr. Ryle claimed a total profit shortfall of $1,520,000, and claimed interest on reinvested  
profits at 8%, for a total of $121,600. Mr. Ryle applied his discount rate figure of 2.5% to this,  
reducing $121,600 to $81,914. Mr. Bradley applied his discount figure of 15% to the calculation,  
leaving all other numbers the same, and obtained a present value for lost profits of $16,000, rather  
than $81,914 (Schedules 12A and 12B of the Bradley Report). Mr. Bradley then went one step  
further, and continued to use the same assumptions as in the Ryle Report, but substituted the Bradley  
average profit per acre of $260, together with a discount rate of 15%. This yielded, in relation to the  
loss with respect to the delay of the development program, a total of only $4,000 (again, in contrast  
to the Ryle figure of $81,914).  
[813] The Board has, for the purposes of the present exercise, taken the Ryle  
figures, as modified by Mr. Bradley, and then itself inserted two new numbers to reflect its own  
findings. These are, first, a discount rate of 8% (the discount rate adopted for general use by the  
Board). Secondly, the Board, rather than apply Mr. Bradley=s estimated profit figure of $260 per  
acre annually, adopted, solely for the purposes of this exercise, its calculated annual profit figure,  
based upon an eventual average annual yield of 2,500 pounds per acre, together with a price of 60  
cents per pound, and the cost figures adopted by the Board (the latter being similar to those  
suggested by Mr. Bradley and Mr. Keough in their reports). The Board=s use of its annual  
estimated profit figure of $437.50, in place of Mr. Ryle=s claimed $950 and Mr. Bradley=s deemed  
figure of $260 is adopted by the Board not on the basis that it expects a profit of that level would be  
achieved from Year 7 (for reasons explained elsewhere in this decision, the Board, in fact, considers  
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that profits of such magnitude should be deemed to occur only when the 15th year has been  
reached), but in order to use a check which is, from the Board=s perspective at least, as generous  
towards the claimant=s position as possible. The Board, then, has set its profit at $437.50 solely for  
the purposes of this particular exercise.  
[814] Not surprisingly, the Board figures, containing as they do both a discount  
figure and an assumption with respect to annual profit per acre which lie somewhere between those  
advocated by Mr. Bradley and Mr. Ryle, yield results somewhat between the two, although closer to  
those of Mr. Bradley than of Mr. Ryle. With respect to excess costs of development and operations,  
the Ryle figure (discounted at 2.5%) is $167,193, the Bradley figure (discounted at 15%) is $46,688,  
and the Board figure (discounted at 8%) is $86,480.  
[815] These figures are, however, based upon accepting the Ryle assumption that  
development would occur in Westchester II East, including land to the east of the river, in the  
manner described in the Ryle plan, ultimately yielding 400 acres of developed blueberry land. The  
Board has found that such development can reasonably be expected to occur C on the evidence  
which the claimant chose to provide in this case C only west of the river, meaning that 34.5 acres of  
land with blueberry potential would be developed, rather than 400. The 34.5 acres of developed  
blueberry land would be located in the 69.5 acres of woodland which presently lies between the  
right-of-way and the river. 34.5 acres is 8.625% of 400 acres; 69.5 acres is 9.14% of 760 acres. If  
the Board applies these two ratios to the excess costs of development and operations as calculated by  
Mr. Ryle and Mr. Bradley and by the Board (simply as an extension of the Bradley analysis), the  
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total excess costs of development and operations are, at most, respectively: $15,289 (Mr. Ryle);  
$4,269 (Mr. Bradley); and $7,908.  
Estimated Loss re Excess Costs of Development and Operations  
Ryle (Discount @ 2.5%)  
Bradley (Discount @ 15%)  
Discount @ 8%  
Discount  
Factor @  
2.5%  
Discounted  
Discount  
Factor @ 15%  
Discounted  
Discount  
Factor @ 8%  
Discounted  
Value  
Additional  
Costs  
Value  
Value  
Year  
1
2
3,940  
1.0000  
0.9756  
0.9518  
0.9286  
0.9060  
0.8839  
0.8623  
0.8413  
0.8207  
0.8007  
0.7812  
0.7621  
0.7436  
0.7254  
0.7077  
0.6905  
0.6736  
0.6572  
0.6412  
0.6255  
0.6103  
0.5954  
3,940  
4,366  
4,426  
4,480  
4,530  
4,574  
3,949  
4,589  
5,195  
5,769  
6,312  
6,825  
7,309  
7,766  
8,195  
8,600  
7,828  
8,097  
8,348  
8,582  
8,800  
9,002  
1.000  
0.8696  
0.7561  
0.6575  
0.5718  
0.4972  
0.4323  
0.3759  
0.3269  
0.2843  
0.2472  
0.2149  
0.1869  
0.1625  
0.1413  
0.1229  
0.1069  
0.0929  
0.0808  
0.0703  
0.0611  
0.0531  
3,940  
3,891  
3,516  
3,173  
2,589  
2,573  
1,980  
2,051  
2,069  
2,048  
1.997  
1,925  
1,837  
1,740  
1,637  
1,531  
1,242  
1,145  
1,052  
964  
1.0000  
0.9259  
0.8573  
0.7938  
0.7350  
0.6806  
0.6302  
0.5835  
0.5403  
0.5002  
0.4632  
0.4289  
0.3971  
0.3677  
0.3405  
0.3162  
0.2919  
0.2703  
0.2502  
0.2317  
0.2145  
0.1987  
3,940  
4,144  
3,987  
3,830  
3,675  
3,522  
2,886  
3,183  
3,420  
3,604  
3,743  
3,841  
3,904  
3,936  
3,943  
3,926  
3,392  
3,330  
3,258  
3,179  
3,094  
3,004  
4,475  
4,650  
3
4
4,825  
5
5,000*  
5,175  
6
7
4,580  
8
5,455  
9
6,330*  
7,205  
10  
11  
12  
13  
14  
15  
16  
17  
18  
19  
20  
21  
22  
8,080  
8,955  
9,830  
10,705  
11,580*  
12,455  
11,620  
12,320  
13,020  
13,720  
14,420  
15,120  
881  
803  
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Ryle (Discount @ 2.5%)  
Bradley (Discount @ 15%)  
Discount @ 8%  
Discount  
Factor @  
2.5%  
Discounted  
Value  
Discount  
Factor @ 15%  
Discounted  
Discount  
Factor @ 8%  
Discounted  
Value  
Additional  
Costs  
Value  
Year  
23  
15,120  
0.5809  
0.5667  
0.5529  
8,783  
8,568  
0.0462  
0.0402  
0.0349  
699  
607  
0.1839  
0.1703  
0.1577  
2,781  
2,575  
24  
25  
15,120  
15,120  
8,359  
528  
2,384  
238,820  
167,93  
46,688  
86,480  
Est. 34.5 acres/400 acres = 8.625%  
Est. 69.5 acres/760 acres = 9.14%  
@ 8.265%  
@ 9.14%  
14,420  
15,289  
@ 8.265%  
@ 9.14%  
4,027  
4,269  
@ 8.265%  
@ 9.14%  
7,459  
7,908  
See Bradley=s report Schedule 7A and 7B  
*Numbers are slightly different from page 16 and 17 of the Ryle Report as follows:  
Year 5  
Year 9  
Year 15  
5,100  
6,420  
11,570  
[816] The second table, relating to estimated loss regarding delay of development  
shows the original Ryle result, discounted at 2.5% to a discounted value of $37,982; Mr. Bradley=s  
revision, discounted at a discount rate of 15%, to a discounted value of $7,395; and the Board result  
when a 8% discount rate is used, yielding a discounted value of $17,458. The second table is based  
on Mr. Ryle=s assumption of 25 acres in Year 7, and 25 acres each year thereafter to a maximum of  
100 acres, after which the figure begins to decline. These numbers are all based on Ryle=s  
assumptions which the Board has rejected elsewhere in this decision. If the Board uses its 34.5 acre  
figure (the total, i.e., the absolute maximum, which it considers will ever be developed), and applies  
this rate from Year 7 through Year 25, it will in some instances actually be using a number greater  
than that used by Mr. Ryle. The Board estimates that, using the Board=s 8% discount rate and an  
assumed acreage of 34.5%, the result would be a figure of less than $7,500. As a further check on  
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this estimate, the Board notes that 34.5 acres expressed as a ratio of 100 acres (the maximum figure  
which Mr. Ryle has in his acreage column) is, obviously, 34.5%. 34.5% of $17,458 is $6,023.  
Board Table No. 3  
Estimated Loss re Delay of Development (UARB=s Estimate Profit per Acres)  
Ryle (Discount @ 2.5%)  
Bradley (Discount @ 15%)  
UARB (Discount @ 8%)  
UARB  
# of  
Acres  
Est. Profit  
shortfall  
Est.  
ROI  
8%  
Est. Profit  
Per  
Acres  
Discount  
Factor @ 2.5%  
Discounted  
Discount  
Factor @ 15%  
Discounted  
Value  
Discount  
Factor @ 8%  
Discounted  
Year  
Value  
Value  
7
25  
50  
437.5  
437.5  
437.5  
437.5  
437.5  
437.5  
437.5  
437.5  
437.5  
437.5  
437.5  
437.5  
437.5  
437.5  
437.5  
437.5  
437.5  
437.5  
437.5  
10,937.5  
21,875  
32,812.5  
43,750  
43,750  
43,750  
43,750  
43,750  
43,750  
43,750  
43,750  
43,750  
43,750  
43,750  
43,750  
43,750  
32,812.5  
21,875  
10,937.5  
700,000  
875  
1,750  
2625  
0.8413  
0.8207  
0.8007  
0.7812  
0.7621  
0.7436  
0.7254  
0.7077  
0.6905  
0.6736  
0.6572  
0.6412  
0.6255  
0.6103  
0.5954  
0.5809  
0.5667  
0.5529  
0.5394  
736  
1,436  
2,102  
2,734  
2,668  
2,602  
2,539  
2,477  
2,417  
2,358  
2,300  
2,244  
2,189  
2,136  
2,084  
2,033  
1,488  
968  
0.3759  
0.3269  
0.2843  
0.2472  
0.2149  
0.1869  
0.1625  
0.1413  
0.1229  
0.1069  
0.0929  
0.0808  
0.0703  
0.0611  
0.0531  
0.0462  
0.0402  
0.0349  
0.0304  
329  
572  
746  
865  
752  
654  
569  
495  
430  
374  
325  
283  
246  
214  
186  
162  
105  
61  
0.5835  
0.5403  
0.5002  
0.4632  
0.4289  
0.3971  
0.3677  
0.3405  
0.3152  
0.2919  
0.2703  
0.2502  
0.2317  
0.2145  
0.1987  
0.1839  
0.1703  
0.1577  
0.1460  
511  
945  
8
9
75  
1,313  
1,621  
1,501  
1,390  
1,287  
1,192  
1,103  
1,022  
946  
10  
11  
12  
13  
14  
15  
16  
17  
18  
19  
20  
21  
22  
23  
24  
25  
100  
100  
100  
100  
100  
100  
100  
100  
100  
100  
100  
100  
100  
75  
3,500  
3,500  
3,500  
3,500  
3,500  
3,500  
3,500  
3,500  
3,500  
3,500  
3,500  
3,500  
3,500  
2625  
876  
811  
751  
695  
644  
447  
50  
1750  
276  
25  
875  
472  
27  
128  
Rounded difference  
56,000  
37,982  
7,395  
17,458  
See Bradley=s Report Schedule 12C and 12D  
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The Board notes here as well that Mr. Bradley did a similar analysis in relation to the Ryle  
claims with respect to the Bogle lands, exploring the compensation for the estimated loss of  
future production from the Bogle lands, as presented in the Ryle Report. In a series of six  
tables, which the Board will not reproduce here, he began, once again, with the Ryle  
claimed loss, and then modified it to reflect certain changed assumptions. He begins with  
Mr. Ryle=s claimed loss of profit over ten years of $20,800. This loss is asserted in relation  
to 2.6 acres, at a claimed annual profit per acre of $800 for the leased Bogle lands,  
discounted at 2.5%. The end result, according to the Ryle Report, is a discounted value of  
$20,800, being $18,703. Mr. Bradley then, once again, adopts all of the Ryle assumptions  
but one, applying a discount rate of 15% for Years 8, 9, and 10, but applying Mr. Ryle=s  
discount rate of 2.5% for Years 1 to 8 (to reflect Mr. Bradley=s assumption that the profit  
per acre for Years to 7, those years being past at the time of the preparation of the Ryle  
Report). Mr. Bradley thus discounts the $20,800 total appearing in the Ryle claim to  
$16,000.  
[817] He then assumes an annual profit of $160 per acre (Mr. Bradley=s assumed  
figure, after adjustment for payment of rent, in place of Mr. Ryle=s assumed $800 per acre). This  
yields an estimated annual profit of $4,160 for Years 1 to 10 which, discounted at 2.5% for all ten  
years, yields an accumulated loss of $4,000, or if discounted at 2.5% for the first seven years, and at  
15% for Years 8, 9, and 10, yields $3,000. Mr. Bradley then adjusts the table one more time, to  
assume that only .5 acres were lost (consistent with the Board=s finding in the present case, rather  
than the 2.6 acres claimed by Mr. Ryle). This yields, at 2.5% for all ten years, an accumulated loss  
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of $4,000, and at 2.5% for the first seven years, and 15% for Years 8, 9, and 10, an accumulated loss  
of only $1,000. Application by the Board of its deemed discount rate of 8% would, once again, raise  
the latter figures somewhat, as would substitution by the Board of its profit per acre figure. The  
Board has not reproduced Mr. Bradley=s tables in relation to the Bogle property, nor done a  
recalculation in any detail. If the Board uses its deemed discount rate of 8%, and its deemed profit  
of $437.50 annual, the figure would be approximately $1,300. If the Board totals its prorated figures  
for losses relating to excess costs of development and operations (a maximum of $7,900), losses  
relating to delay of development (a maximum of $7,500) and loss of future production on the Bogle  
lands (a maximum of $1,300), one gets a total of $16,700. This is significantly below the result  
achieved by the Board before and after analysis, based upon Mr. Omond=s appraisal with  
modifications, which yields a figure of $49,902.  
[818] The Board has no illusions about the crudeness of these calculations,  
regarding them as nothing more than an extremely rough measure against which to compare the  
result obtained under the before and after analysis, upon which it does place great weight.  
[819] The Board will turn now to issues of the market value of the property and  
appropriate injurious affection. The Board=s discussion, and findings, in relation to the topic are  
largely based upon the conclusions of Mr. Omond, but it will also address here issues of  
compensation for value of timber and setoff as claimed by the Crown.  
Compensation for Value of Timber on Expropriated Land  
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[820] The Crown appears to have made available to the claimant, as well as other  
owners of property purchased or expropriated for the Cobequid Pass Highway, the timber harvested  
from the right-of-way by the Crown. The claimant did not, or was unable to, gather and sell any of  
the logs, allegedly because of a failure by the Crown to properly deal with the timber once it had  
been harvested. As the claimant=s closing brief puts it at paragraph 37, the Department:  
. . . promised that Harrisons would be given the timber cut off the Right of Way but that was  
never provided . . .  
[821] The Board finds that the offer by the Crown to make available at no charge  
the timber which was harvested was not pursuant to an agreement, and had no consideration. It was,  
at best, a gift, and was not legally enforceable. In the view of the Board, the case of McWhinnie v.  
The Queen (1986), 36 L.C.R. 257, which is cited in the Johnson decision at paragraph 177, applies.  
In that case, the Nova Scotia Expropriation Compensation Board, predecessor of the present Board,  
stated, in part:  
The value of lands accepted by the Board for the expropriated area includes the value of the  
standing timber and, therefore, the claimant has suffered no loss as a result of not being able  
to harvest the timber. The fact that the Department of Transportation permitted the claimant  
to salvage the timber on the land was a gratuitous gesture and is not compensable . . . [p.  
262]  
As did the Board in Johnson, the Board in the present case adopts the position of the  
Expropriation Compensation Board in McWhinnie: it denies any compensation for alleged  
losses relating to any promise made by the Crown to make timber from the expropriated  
lands available to the claimant free of charge.  
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[822] Ms. Haylock=s report refers to compensation for lost opportunity to harvest  
timber, both in the salt spray protection strips claimed by Mr. Ryle, and in the right-of-way. The  
claim for compensation for timber in the right-of-way which appears in Ms. Haylock=s report,  
seems to be based not upon a promise by the Crown to allow the timber to be harvested, but on the  
assumption that the owner of expropriated land would be entitled to such compensation. Her report,  
which in certain instances, as she acknowledged in her oral evidence, applied assumptions supplied  
to her by Mr. Ryle, states that the value of the standing timber for the right-of-way, together with the  
salt spray protection strips (18.43 acres in total), was $814.02 in 1995. She states the roadside value  
before expenses of the timber harvested in the 18.43 acres would be $22,443.14, to which she adds a  
Abare land@ value of $100 per acre (a value asserted by Mr. Ryle) for a gross loss of $24,286.14.  
[823]  
The Board has already rejected the salt spray protection strips claimed by Mr.  
Ryle for the west and east sides of the right-of-way, and therefore rejects the Haylock calculations  
which assume a necessity of such strips. A remaining issue is whether compensation for the value of  
the loss of revenue from timber which could have been harvested on the 9.687 acres of land  
expropriated for the right-of-way, should, following Ms. Haylock=s calculations, be paid to the  
claimant as compensation for the loss of his timber (a claim, it appears, which is regarded as  
different from the claim which is based upon alleged promise by the Crown to provide the timber).  
Counsel for the claimant in its closing briefs urges that the claimant is entitled to compensation for  
the lost value of timber in both the right-of-way and the claimed salt spray protection strips.  
[824] In the view of the Board, the claim for compensation for the lost value of  
timber in the right-of-way may be seen as another variation on the approach adopted by Mr. Ryle  
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(i.e., incremental valuation, unsupported by comparables, and, at times at least, the Avalue to  
owner@ approach), which has been rejected by the Board elsewhere in this decision. Additionally,  
the Board sees this claim as being, impliedly at least, inconsistent with the Board=s findings in  
McWhinnie. While McWhinnie deals with a case involving an alleged breach of promise by the  
Crown to give harvested wood in expropriated lands to the former owner, the reasons given by the  
Board in McWhinnie include (as noted in the quotation above) that the market value for  
expropriated lands:  
includes the value of the standing timber and, therefore, the claimant has suffered no loss as  
a result of not being able to harvest the timber.  
As in McWhinnie, the Board considers that the $900 per acre which it has set as the  
market value for woodland with blueberry potential is a value which includes the value of  
the standing timber. Accordingly, following the same reasoning used by the Board in  
McWhinnie, the Board rejects Ms. Haylock=s assertion of an entitlement to compensation  
for the loss of timber which could have been harvested on the 9.687 acres which were  
expropriated for the right-of-way.  
[825] Ms. Haylock (who was qualified with respect to certain forestry activities, but  
not in relation to the blueberry business) set forth in her report (page 16) a claim relating to 18.41  
acres of potential blueberry land which was allegedly lost (because of the expropriation of 9.687  
acres, together with the salt spray protection strips claimed by Mr. Ryle). She states that:  
Blueberry ground in that area produces an average of 2250 lbs/acre every second year with  
an average price to the grower of $0.55 /lb., and if we project that over a twenty year period  
or 10 harvests this results in $227,823.75 in potential losses. [emphasis in original]  
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She then totals her calculations of timber value losses, potential losses and the minimum  
extra expenses for the next 20 years:  
Timber value losses  
Potential losses  
Extra expenses  
Total  
$22,443.14  
$227,823.75  
$24,1 51.36  
$274,418.25  
[826] For purposes of this part of the decision, the Board will simply observe that it  
considers this calculation of blueberry losses to have been done on a similar basis to that used by  
Mr. Ryle in his evidence, and to be without foundation. It rejects her conclusions on these points,  
for similar reasons to its rejection of Mr. Ryle=s evidence on a similar point.  
Crown Claim for Set-off Against Injurious Affection Compensation  
[827] Counsel for the respondent asserts that benefits accruing from speedier and  
easier travel from Southampton to Westchester via the Cobequid Pass Highway (such as reduced  
time and reduced cost) should be credited to the respondent Crown, pursuant to s. 32 of the Act,  
thereby reducing any compensation payable to the claimant.  
[828] With respect to presumptions of compensation under the Expropriation Act,  
Mariner Real Estate v. Nova Scotia (Attorney General), [1998] N.S.J. No. 368, quotes Todd as  
follows:  
Where land has been taken the statute will be construed in light of a presumption in favour of  
compensation . . . but no such presumption exists in the case of injurious affection where no  
land has been taken . . .  
In the present instance, there is a claim for injurious affection, but land has actually been  
taken. According to Todd, the case law indicates that in some instances (for example,  
involving a small amount of land taken in a so-called strip expropriation, leaving a  
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significant balance of land), Athe quantum of compensation@ for injurious affection Ahad to  
be based on conjecture.@ For example, where a drain installed on 3.4 expropriated acres  
detracted from the aesthetic appeal of 60.6 acres, the Ontario Land Compensation Board  
awarded 10%, the Board recognizing that this was Abased on conjecture.@ On the other  
hand, Todd also notes that A. . . percentage figures used to determine compensation for  
severance and injurious affection damages to the remaining land must not be arbitrary  
ones.@ Todd cites Gardiner Burton in which a 400 foot high tower 400 feet away from a  
motel block, for which the Nova Scotia Expropriations Compensation Board had awarded  
12.5% of the before value of the whole property (excluding the lands actually expropriated)  
for injurious affection (resulting in compensation of $55,000 for injurious affection), the  
Supreme Court, using the Abefore and after@ method and the income approach, concluded  
that the owner was entitled to compensation for injurious affection in the sum of $187,000.  
[829] Todd comments at pages 364, 365, and 366 that, while only the Canada  
Expropriation Act and the British Columbia expropriation legislation deal directly with the subject,  
in his opinion, all of the provincial legislation would be interpreted by the courts and tribunals as  
meaning that an:  
. . . owner always receives the market value of the land taken and that there can only be a set  
off of benefits against any claim for severance damage or injurious affection . . .  
[830] Todd points out that s. 32 of the Nova Scotia Expropriation Act means that  
any benefits or Aadvantage@ to the remaining land is only to be set off against the amount of  
damages for severance or injurious affection to the remaining land. Section 32 states:  
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Set-off  
s. 32 The value of any advantage to the land or remaining land of an owner derived from  
any work for which land was expropriated or by which land was injuriously affected  
shall be set-off only against the amount of the damages for injurious affection to the  
owner=s land or remaining land.  
[831] In Superior Propane, the Court of Appeal said that, under s. 32, set-off is  
available only in relation to injurious affection claims, and not in relation to business disturbance  
losses (para. 20).  
Todd further asserts at page 364 that:  
As a general principle of equity and fairness it may be stated that an expropriating authority  
should be entitled to set off only special benefits and then only against the amount of  
compensation which otherwise would be payable for severance damage and injurious  
affection to the remaining land. [emphasis added]  
By Aspecial benefits,@ Todd appears to be referring to benefits other than those which  
would equally affect other land owners who had not had property expropriated. In Nova  
Scotia, Todd quotes as the authority for this s. 26 of the Expropriation Act. In Todd=s  
view, not only must the type of benefit or advantage which is to be set off against damages  
for severance or injurious affection be of a special type, but there must be a Adirect causal  
relationship between the injurious affection and the benefit or advantage which is to be set  
off.@  
[832] The Board notes that in Williams, the Crown asserted a set off of $29,965,  
calculated at $6,500 per acre, which the Crown said should apply to 4.61 acres which were near a  
Trans Canada Highway exit and would thereby command a considerably higher price than of  
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farmland. The Board in Williams made no allowance for set off in relation to this, and the Court of  
Appeal found that this decision was:  
an exercise of the Board=s jurisdiction within the range of the deference which should be  
accorded to it. [para. 92]  
The Board sees the present proceeding as different from the issue just described in  
Williams, in that the 4.61 acres in Williams were located close to a highway access, and  
thereby might be seen by some as having received a special benefit. In the present  
proceeding, the Cobequid Pass Highway simply passes through the claimant=s property,  
without creating a nearby exit or other feature which might be construed (for example, by  
creating commercial or residential development opportunities) as conferring upon the  
subject property a benefit which is special to it. In the view of the Board, on the evidence  
before it, the benefits or advantages which it may be argued are conferred upon the subject  
property in this proceeding (essentially, the divided highway affording higher speed  
transportation from the home base at Southampton, and to processors such as Oxford), are  
benefits of a type which affect not simply the claimant, or other property owners like the  
claimant who have had property expropriated, but all property owners in the immediate  
area, whether they have had any property expropriated or not.  
[833] The Board, then, rejects the assertion by counsel for the respondent Crown  
that any benefits such as saved time and reduced costs accruing from speedier and easier travel via  
the Cobequid Pass Highway should be credited to the respondent Crown under s. 32. Instead, the  
Board adopts the analysis put forward by Todd: it considers that any benefit to the claimant of this  
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type are not Aspecial@ and accordingly finds that there should be no set off payable in relation to any  
award of compensation which may be made to the claimant in the present matter.  
[834] If the Board is wrong in concluding that the benefits need be Aspecial@ (as  
Todd used the term), the Board finds, in the alternative, that there is no evidence before it upon  
which it could, on the balance of probabilities, determine a benefit per acre, much less the number of  
acres to which that benefit would apply in the present case.  
ABefore and After@ Approach: Board Modification of Omond Analysis  
[835] Qualified appraisers are not the only persons from whom the Board receives  
information with respect to market value. Their specialized knowledge of the area, however,  
becomes, in the view of the Board, more and more important as the stakes involved in an  
expropriation rise. The more complicated the issues, and greater the stakes, the more essential, in  
the view of the Board it is that each party have as an important part of its case an expert who has C  
whatever other information or evidence may be provided to him or her by other witnesses or sources  
of evidence about the particular area C demonstrated expertise as an appraiser. In the present  
instance, the claimant (or his representatives), while having had discussions with Mr. Speed, an  
appraiser of long experience, chose not to provide any evidence from him. Instead, the claimant  
relied on the report of Mr. Ryle, and associated oral evidence, neither of which contains any  
references to any comparable sales. Moreover, this evidence contains indications that it relies, at  
least in part, upon the value to the owner concept, an approach to valuation in expropriation which  
has been rejected by the Court of Appeal as being inconsistent with current legislation.  
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[836] In evaluating market value using the direct comparison approach, it may be  
trite to say that one looks at sales which are, to one degree or another, comparable C identifying  
them by the names the vendors and purchasers involved, the year in which they occurred, any  
special circumstances in which they may have occurred, financing issues which may have affected  
market value, etc. The claimant in the present case not only did not provide the evidence of a  
witness who was an appraiser, but, in its references to market value, did not provide, as the Board  
saw the evidence, any real comparables: instead, the Board was told simply generalizations, in  
which Mr. Ryle alone, or Mr. Ryle with the support, to one degree or another, of Mr. Gervason or  
Mr. Sibley, referred to prices of, for example, $3,000 per acre, as being Agenerally@ correct, or Aa  
safe number@ or, as counsel for the claimant put it in closing submissions, an Aappropriate, modest  
value.@ The claimant=s witnesses also referred to having been involved in acquisition projects, such  
as the construction of a pipeline. Such experiences may indeed lend a measure of weight to the  
evidence of a witness, but, if those experiences are to be relied upon, then, in the view of the Board,  
evidence of specific settlements (similar in nature to evidence of specific sales) are needed before  
the Board can begin to reach any conclusions as to the reliability of the conclusions being expressed.  
In making this observation about the possibility of specific settlements as evidence, the Board notes  
that such evidence has been adduced and accepted in Alberta, although it has not as yet been  
adduced, at least in the form of the so-called Apattern of settlements@ approach, in Nova Scotia: see,  
for example, MacIsaac and the cases cited therein. Whether these sales (or, possibly, settlements)  
be extremely comparable, having occurred very recently in the same area using similar lands, or  
whether they be much less comparable, having occurred years before, with considerably different  
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characteristics of the land, there should be particular evidence of these sales (or settlements), with  
the Board giving more or less weight to them as appropriate. In his 2002 Addendum, Mr. Omond  
reduced the value of property (woodland with blueberry potential, and woodland without) located to  
the east of the right-of-way by 15%. This reduction of 15% was intended, according to his evidence,  
to reflect:  
. . . both the physical separation plus the nuisance and added travel cost of accessing the  
severed lands.  
Taking into account all of the circumstances of this case, including the matters referred to  
by Mr. Omond, the Board sets the depreciation of the property to the east of the right-of-  
way at 15%, as well as to the other matters relevant to the issue which have already been  
identified by the Board in this decision.  
[837] 656 acres lies not merely east of the right-of-way, but east of the river. Of  
this, according to assumptions agreed to by the parties, 365.5 acres is woodland with blueberry  
potential, i.e., it is reasonable to assume that there are blueberry plants in the ground which, after  
clearing of the timber, could spread over the surface of the ground and develop into commercial  
blueberry fields. While Mr. Omond valued woodland without blueberry potential at $400 per acre,  
and woodland with such potential at $900 per acre, he valued the woodland to the east of the river  
(whether or not it had blueberry potential) at $350 per acre. That approach by Mr. Omond (with  
modifications to reflect the Board=s findings with respect to area and salt spray protection strips) is  
the one reflected in the A1-A2 Analysis. The A1-A2 Analysis is the one preferred by the Board.  
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[838] In adopting the A1-A2 analysis, the Board was conscious that the highest and  
best use to be applied in a given situation need not be the use which is presently there:  
The law is clear that you do not have to accept the existing use of land as its highest and best  
use. There may be a higher or better use which would generate a higher market value.  
[McLeod v. New Brunswick, [2000] N.B.J. No. 303, para. 60]  
[839] Todd says at page 134 and 135:  
The statute impliedly recognize that, notwithstanding the actual use of the subject property at  
the relevant date, market value may be based on some other >higher and better use.=  
The answer to the question >[a]t the moment of expropriation, what was the highest and best  
use to which the lands in question could reasonably be expected to be put?= has been  
described as >the corner stone supporting whatever compensation might be awarded to the  
claimant.=@  
For a higher and better use to be taken into account, it must be more than a mere >chance=;  
it must be based on a reasonable expectation and in this context >reasonable= is  
emphasized to eliminate speculative ventures and over optimistic expectation. [emphasis in  
original]  
[840] As was remarked in Lasade Enterprises Ltd. v. Newfoundland (1993), 356  
A.P.R. 19 (Newfoundland Supreme Court, Court of Appeal):  
Highest and best use is assessed on the basis of what is a reasonable expectation at the  
time of expropriation. Speculative or unrealistic expectations cannot be used to ground the  
compensation on a use that is higher than the current use.  
The Court in Lasade contains the following from Lincoln W. North, AThe Concept of  
Highest and Best Use,@ which says, in part:  
. . . there must at least be a reasonable probability that such (alternative) use will meet all of  
the criteria governing its determination. It must not only be reasonably probable that such  
alternative use will come into being, either immediately or in the foreseeable future, but that  
such higher and better use will be strong enough to affect the present market value of the  
property. Otherwise the alternative use should not be considered as a higher and better use.  
Stated conversely, it may be said that a prospective purchaser will seldom pay a premium  
price for a property, over and above its value in current use, unless a higher and better use  
has a reasonable certainty of being realized . . .  
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[841] While the Board accepts that the 365.5 acres in question are physically  
capable of being developed into blueberry lands, the A1-A2 analysis reflects the conclusion in the  
Omond appraisal, and the Board=s conclusion based upon all of the evidence, including the Omond  
appraisal, that, given the overall circumstances of the property, the 365.5 acres in question should be  
valued simply as woodland without blueberry potential: the possibility of development of that  
property, in part, into blueberry producing fields is, in the Board=s view, too remote, founded upon  
too many uncertainties and too many important items about which little or nothing is known  
(including, for example, the complete lack of information in the evidence about the cost of design  
and construction of necessary access roads up and down the western and eastern escarpments, and  
the crossing of the river, and the availability or otherwise of access from the east). As Todd remarks  
in the passage quoted in the preceding paragraphs, a higher and better use:  
. . . must be based on a reasonable expectation and in this context >reasonable= is  
emphasized to eliminate speculative ventures and over optimistic expectation. [emphasis  
added]  
The Board notes, once again, Mr. Omond=s comment quoted by the Board at an earlier  
point in this decision:  
. . . in my best judgment . . . a reasonable person would have only paid the $350 per acre for  
those back lands, irrespective of the tonnage or the pounds per acre . . .  
[842] Following the Omond analysis, the Board has reduced the value of woodland  
on the east side of the river from $400 per acre to $350 per acre to reflect the existence of the  
challenges presented by the river and its gorge.  
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[843] The Board has, in essence, adopted the Omond approach, with certain  
differences which are referred to below and elsewhere in this decision. The following tables are  
based upon the 2002 Omond approach. These changes reflect, first, the Board=s figures with respect  
to acreage (which are summarized at ALand Areas@). These numbers are almost identical to Mr.  
Omond=s, but not exactly the same. There are several reasons for this, including differences in  
rounding, or rounding errors. One significant difference between the two is the assumption by the  
Board of 34.5 acres of woodland with blueberry potential between the right-of-way and the river,  
instead of 25 acres (the assumption used by Mr. Omond, and which was the same as that used by Mr.  
Ryle at least in the early parts of the his evidence). As the Board has elsewhere noted, it has  
concluded from evidence which was available to it as a result of the hearing, but not to Mr. Omond  
at the time of the preparation of his report, that a more appropriate figure for woodland with  
blueberry potential is 34.5 acres, rather than 25 acres. A second significant difference between the  
two is that the Board has, for reasons explained elsewhere, made no allowance for salt spray  
protection strips, whereas Mr. Omond=s analysis did. Thus, for example, at 14.2 A in his table, he  
shows, in effect, a reduction in market value of woodland with blueberry potential, located in the  
buffers zones on either side of the right-of-way which he assumed to be necessary, from $900 per  
acre to $100 per acre, thereby causing, according to his calculation, a loss of $4,000 (5 acres x $800  
= $4,000).  
Scenario A1  
Before Expropriation  
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Scenario A1  
Before Expropriation  
Acre  
8.080  
$
Total  
Blueberry Field  
3,000  
$24,240  
Woodland With Blueberry Potential  
West of right-of-way  
(r.o.w.)  
16.720  
site of r.o.w  
9.687  
34.500  
60.807  
r.o.w. to river  
x 900  
x 400*  
x 350**  
x 350  
54,726  
14,000  
31,850  
Woodland Without Blueberry Potential  
Woodland Without Blueberry Potential  
Woodland Without Blueberry Potential  
35  
91  
565  
197,750  
759.9  
$322,566  
* Market value per acre of woodland without blueberry potential west of river.  
** Market value per acre of woodland without blueberry potential east of river.  
Scenario A2  
After Expropriation  
Factor 85%*  
$
Acre  
$
Total  
Blueberry Field  
8.080  
3,000  
$24,240  
Blueberry Potential  
16.720  
34.500  
51.120  
900  
900  
15,048  
26,316  
765  
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Scenario A2  
After Expropriation  
Factor 85%*  
$
Acre  
$
Total  
Woodland Without Blueberry Potential  
Woodland Without Blueberry Potential  
Woodland Without Blueberry Potential  
35  
400  
350  
350  
340  
297.50  
297.50  
11,900  
91  
27,073  
565  
168,088  
750.2  
$272,664  
Difference  
$49,902  
* Value reduced by 15% because of loss of direct access from Westchester II West.  
[844] Deducting A2 from A1 yields a difference of $49,902, the Board=s  
calculation of compensation payable to the claimant using this approach. Simply deducting $4,000  
from Mr. Omond=s table (to take account of the Board=s rejection of his assumption of injurious  
affection in salt spray protection strips amounting to $4,000) yields a roughly similar figure, being  
$48,278 ($52,278 - $4,000).  
[845] The Board includes below two further tables, B1-B2 and C1-C2. These do  
not represent the Board=s findings with respect to highest and best use of the lands to the east of the  
river, or, on a related point, the probability of development occurring in the manner postulated by  
Mr. Ryle. They are, however, included in the event of an appeal, on the basis that they may provide  
a useful alternative calculation which might be employed, depending upon the view taken by a  
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higher Court of the Board=s evaluation of the evidence, with respect to market value and other  
matters, in the present case.  
[846] Counsel for the respondent suggested the Board might itself deduce an  
appropriate figure, based upon costing information. In the view of the Board, however, the costing  
information which is before the Board with respect to whatever actual additional costs might be  
incurred in relation to development of blueberry lands east of the right-of-way is, as the Board has  
noted elsewhere, not sufficiently reliable for the Board to base such a calculation upon. Moreover,  
the Board has in this decision found that lands east of the river are properly valued simply as  
woodland without blueberry potential, even though the Board recognizes that blueberry plants are  
present in some of the ground in that area and might (in the right business circumstance) be  
developed. If the Board had concluded that lands to the east of the river could properly have been  
valued as woodland with blueberry potential (contrary to Mr. Omond=s finding), it would, given its  
findings about the deficiency of the income approach evidence before it, have simply reduced the  
value of woodland with blueberry potential east of the river by the same proportion that Mr. Omond  
reduced the value of woodland without blueberry potential east of the river. In doing so, the Board  
recognizes that the nature and degree of activities involved in timbering and blueberry development  
and production are not the same; nevertheless, given the nature and quality of the income approach  
evidence before it, it would place more reliance upon such a percentage derived from Mr. Omond=s  
report than it would from figures, including claimed costs, developed entirely, or in significant  
measure, from the Ryle Report.  
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[847] The Board accordingly will use two additional approaches here. The first of  
these, B1-B2, simply applies Mr. Omond=s $900 per acre figure to lands with blueberry potential to  
the east of the river, just as he applied it to lands to the west of the river. The B1-B2 analysis, unlike  
the A1-A2 analysis, values 365.5 acres to the east of the river at $900 per acre, i.e., at the price per  
acre set by Mr. Omond (and adopted by the Board) as the price per acre for woodland with blueberry  
potential. Mr. Omond did not, in his analysis, address the possibility of valuing land with blueberry  
potential to the east of the river as anything more than land without blueberry potential (i.e., instead  
of basing his calculation upon $900 per acre, he used $400 per acre). Accordingly, while he has a  
$350 per acre figure for woodland without blueberry potential to the east of the river (a reduction  
from $400 per acre to reflect the existence of the river and its escarpments, and the implications  
thereof), he did not include in his report a figure which would correspond to the $900 per acre figure  
for woodland with blueberry potential.  
[848] The second approach, seen in C1-C2, is to reduce the $900 per acre figure by  
the same proportion that he reduced the $400 per acre figure, in application to woodland without  
blueberry potential east of the river. This reduces the figure for land with blueberry potential east of  
the river from $900 per acre to $765 per acre.  
[849] For B1-B2, the difference of value of the land before expropriation and after  
expropriation is $80,015; for C1-C2, the difference in value is $73,855.  
Scenario B1  
(Ignore river for blueberry potential value)  
Before Expropriation  
Acre  
$
Total  
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Scenario B1  
(Ignore river for blueberry potential value)  
Before Expropriation  
Acre  
8.08  
$
Total  
Blueberry Field  
3000  
$24,240  
Woodland With Blueberry Potential  
West of right-of-way  
(r.o.w.)  
16.72  
site of r.o.w  
9.687  
34.5  
r.o.w. to river  
60.807  
900  
400  
350  
900  
350  
54,726  
14,000  
31,850  
328,500  
Woodland Without Blueberry Potential  
Woodland Without Blueberry Potential  
Blueberry Potential*  
35  
91  
365  
Woodland  
200  
70,000  
759.9  
$523,316  
Scenario B2  
After Expropriation  
Factor 85%**  
$
Acre  
$
Total  
Blueberry Field  
8.080  
3,000  
3,000  
$24,240  
Blueberry Potential  
16.720  
34.500  
900  
900  
900  
765  
15,048  
26,316  
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Scenario B2  
After Expropriation  
Factor 85%**  
$
Acre  
$
Total  
51.120  
Woodland Without Blueberry Potential  
Woodland Without Blueberry Potential  
Blueberry Potential  
35  
91  
400  
350  
900  
350  
340  
297.50  
765  
11,900  
27,073  
365  
279,225  
Woodland  
200  
297.50  
59,500  
750.2  
$443,302  
Difference  
$80,015  
* Breakdown of 565a into 365a Blueberry Potential and 200a Wood Land  
**Value reduced by 15% because of loss of direct access from Westchester II West  
Scenario C1  
Before Expropriation  
Factor  
Acre  
$
87.5%***$  
Total  
Blueberry Field  
8.080  
3,000  
$24,240  
Blueberry Potential  
16.720  
9.687  
34.500  
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Scenario C1  
Before Expropriation  
Factor  
Acre  
$
87.5%***$  
Total  
Blueberry Potential  
60.807  
900  
400  
350  
900  
350  
54,726  
Woodland Without Blueberry Potential  
Woodland Without Blueberry Potential  
Blueberry Potential*  
35  
91  
14,000  
31,850  
365  
788  
287,438  
Woodland  
200  
70,000  
759.9  
$482,254  
Scenario C2  
After Expropriation  
Factor  
85%**$  
Factor  
87.5%***$  
Acre  
$
Total  
Blueberry Field  
8.080  
3,000  
$24,240  
Blueberry Potential  
16.720  
34.500  
51.120  
900  
900  
15,048  
26,316  
765  
Woodland Without Blueberry Potential  
Woodland Without Blueberry Potential  
35  
91  
400  
350  
340  
11,900  
27,073  
297.50  
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Scenario C2  
After Expropriation  
Factor  
85%**$  
Factor  
87.5%***$  
Acre  
$
Total  
Blueberry Potential  
Woodland  
365  
900  
350  
765  
669  
244,322  
200  
297.50  
59,500  
750.2  
$408,398  
Difference  
$73,855  
* Breakdown of 565a into 365a Blueberry Potential and 200a Wood Land  
**Value reduced by 15% because of loss of direct access from Westchester II West  
***Value reduced by 12.5% to reflect river crossing  
[850] Again, the Board has included B1-B2, and C1-C2, for the reason stated above;  
it is the Board=s conclusion that A1-A2 is the correct approach to apply. On the basis of the A1-A2  
analysis, and because the Board considers that no useful income approach analysis is available (upon  
which a claim for loss could safely be based), the Board fixes compensation at $49,902.  
XXVIII  
SUMMARY OF MAJOR POINTS IN THIS DECISION  
[851] In this proceeding:  
$
The Board finds, contrary to the evidence of Mr. Ryle, that there is no automatic  
necessity for salt spray protection strips on the lands of property owners adjoining a highway such as  
the Cobequid Pass, that the need for such strips, if any, is entirely site dependent, and that no such  
strips are needed in the present case;  
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$
the Board finds that the government land access roads are not too steep (apart from  
the intersection with the Westchester Road which the Board directs be corrected, but which is, in the  
opinion of the Board, satisfactory in all except slippery and snowy conditions), that they are  
adequately drained, and have adequate surface material;  
$
for much of his evidence, Mr. Ryle asserted that a Afarm gate@ price (the price paid  
to growers) per pound of 75 cents should be set by the Board. The Board finds that the average farm  
gate price has never, in any year, ever reached 75 cents per pound. The Board sets the price for  
blueberries, for the purpose of any calculation used in this expropriation proceeding, at a total of 60  
cents, representing 52 cents for the farm gate price and 8 cents for the broker=s price, representing a  
supplementary amount receivable by the claimant because of his broker status;  
$
Mr. Ryle, on behalf of the claimant, asked that the Board find that on average an acre  
of woodland with blueberry potential would become fully producing blueberry land in six years,  
with an average yield per acre in alternate years (blueberries being normally harvested only every  
second year) of 4,000 pounds. The Board finds that these figures, are not, on the preponderance of  
the evidence, credible C noting, for example, that the claimant=s average yield for its various  
properties in Cumberland County from 1990 to 1995 (the year of the expropriation) was 1,743  
pounds per acre, and that 1995 was a particularly good year. The Board adopts a figure of 15 years,  
instead of six, to full development, with an average yield at full development of 2,500 pounds per  
acre, instead of 4,000 pounds. It sets the average yield for Years 7 to 10 at 1,000 pounds per acre  
and for Years 11 to 14 at 1,750 pounds per acre;  
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$
with respect to discount rates, the claimant through Mr. Ryle initially asked that the  
Board set a discount rate of 2.5% for all purposes; another expert called by the claimant, Mr.  
Keough, saw merit in a range of discount rates, but particularly one of about 5%; Mr. Bradley, called  
by the Crown, was of the opinion that 25% would not be an inappropriate discount rate, but  
ultimately recommended 15% for most purposes. The Board set the discount rate for most purposes  
in this proceeding at 8%;  
$
while evidence on behalf of the claimant, particularly through Mr. Ryle, referred at  
times to its Ahome base@ at Westchester, the Board finds that the claimant=s home base is not in  
Westchester, but almost 40 miles away in Southampton, where Jim Harrison=s house is located, as  
well as all of the buildings and equipment which he uses in relation to his enterprises, including the  
claimant=s agricultural properties (which are scattered in at least 10 locations over Cumberland  
County), as well as his other business activities not just in Cumberland County but elsewhere in  
Nova Scotia and outside the province. The Board finds that on the balance of probabilities, no  
Ahome base@, or additional Ahome base,@ would be established at Westchester, whether or not an  
expropriation had ever occurred;  
$
the Board finds on the evidence before it that no compensation should be paid for the  
Asecurity building@ which Mr. Ryle advocated should be built at Westchester;  
the Board finds that the nature, extent and claimed speed of development of the plan  
$
advanced by Mr. Ryle on behalf of the claimant is not consistent with the preponderance of the  
evidence;  
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$
the Board finds that, if the Westchester property were to be developed in the manner  
proposed by Mr. Ryle, and supported by the claimant, access roads would have to be built on the  
western and eastern escarpments of the West Branch of the Wallace River, as well as construction of  
a crossing over the river, both of which represent significant challenges, the design and costing for  
which the claimant chose to present no evidence whatever;  
$
the claimant seeks compensation of $18,703 in relation to losses allegedly arising  
from the neighbouring Bogle property, in which the claimant has a leasehold interest, although no  
written lease. The claimed compensation relates to 0.5 acres of land expropriated from the Bogle  
property, and 2.1 acres which lie within the salt spray protection strip claimed by Mr. Ryle. The  
Board denies the claim with respect to the 2.1 acres, the Board having found that no salt spray  
protection strips are necessary. Noting that the claimant has acquired other leased acreages in excess  
of the .5 acres since 1995, that there is no evidence on the balance of probabilities that the claimant  
incurred expenses in leasing the .5 acres as part of the additional land, or that there is lost profit  
relating to a difference between the nature of the new leasehold and the former one, the Board finds  
no basis for compensation in relation to the 0.5 acres of the Bogle property which was expropriated;  
$
the Board finds no basis whatever for the claim advanced by Mr. Ryle for  
Adiminution@ of value of what he describes as an existing 9 acre blueberry field in Westchester II  
West, which is outside the claimed salt spray protection strips;  
$
with respect to calculations of compensation based upon the income approach, the  
Board found the evidence of the claimant, and in particular that of Mr. Ryle, with respect to the  
likely profitability of blueberry fields to be generally lacking in credibility, and, in particular,  
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pointing towards a level of profitability inconsistent with the preponderance of the evidence. A key  
part of the theory of compensation advanced on behalf of the claimant relates to the alleged  
additional costs (and consequent reduced profits) which the claimant says it would sustain as a result  
of the construction of the right-of-way with its accompanying government land access road. Most of  
the specific evidence relating to these alleged increased costs came from Mr. Ryle, with little, if  
anything, on many of these points coming from other witnesses. On a number of key points to  
which the Board has alluded in this decision, the Board found Mr. Ryle=s evidence to be lacking in  
credibility, and an unreliable foundation upon which to base a claim for compensation relating to  
loss of income;  
$
the claimant=s evidence with respect to market values was, the Board found,  
essentially assertions, with (remarkably, at least in the Board=s experience) no reference to specific  
comparables. The claimant=s evidence also included reference to the Avalue to owner@ approach  
which the Board regards as inconsistent with the legislation and case law;  
$
given the central position of Mr. Ryle=s evidence to the claimant=s case, and the  
weight which has previously been given to his evidence in certain earlier decisions of the Board, the  
Board C given its findings in this case C explored in much greater detail than usual matters of  
credibility, and also particular items of evidence relating to a variety of issues, including salt spray,  
market values, income, etc.;  
$
the Board accepts the basic market values per acre set by Mr. Omond, being $400 per  
acre for woodland without blueberry potential, $900 per acre for woodland with blueberry potential,  
and $2,500 per acre for fully developed blueberry land. It also accepts Mr. Omond=s reduction by  
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15% of the market value of lands east of the right-of-way, on the basis that this allowance reflects  
physical separation, nuisance, and added travel costs. It accepts the argument of the respondent  
Crown that to provide compensation for the market value of the land taken, and for injurious  
affection as, in part, just described, and then to award further compensation for excess costs of  
development (as urged by the claimant) would be double compensation. The Board further accepts  
Mr. Omond=s opinion that all lands to the east of the river should be valued at a lower rate than  
lands to the west of the river. It further accepts his valuation of woodland with blueberry potential  
to the east of the river as if it were woodland without such potential; and  
$
the Board rejects the assertion by counsel for the respondent Crown that  
compensation paid by it to the claimant should be reduced by an amount to take account of the saved  
time and reduced costs accruing from speedier or easier travel via the Cobequid Pass Highway.  
Conclusion  
[852] In essence, in this decision, the Board finds that two approaches (first,  
calculation of market value and injurious affection, and, second, the income approach) are  
particularly relevant to an expropriation of this type. The income approach normally has special  
significance in agricultural matters, because the land is being used to generate income. In the  
present instance, however, the Board has chosen to reject the income based theory of compensation  
put forward by the claimant (which relates in large part to the additional costs of equipment and  
personnel allegedly imposed by the government land access roads) as generally lacking in  
credibility. It has further concluded that there is not sufficient alternative evidence for it to, in effect,  
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construct a credible income scenario to use in place of the claimant=s model, to use for calculation  
of income or cost related losses relating to injurious affection.  
[853] The Board accepted, with certain modifications, the market value and  
injurious affection analysis by Fergus Omond, an accredited appraiser called as a witness by the  
respondent Crown, and the only appraiser to testify. He calculated the compensation owing to the  
claimant at $52,278. The Board modified Mr. Omond=s evidence slightly to take account of  
different acreages, and to take account of the Board=s rejection of salt spray protection strips,  
thereby obtaining a total of $49,902.  
Award of Compensation  
[854] The Board awards a total of $49,902 to the claimant for all losses which are  
the subject of this proceeding; the Board notes that certain other claim losses have been left to a  
subsequent hearing, and are referred to below.  
Matters to be Left for Subsequent Hearing  
[855] The Claimant requested that the Board reserve on the issue of the tax  
implications, if any, of the award until that can be quantified, and the Board agrees: Williams.  
Consistent with the request made by the claimant, the Board will also deal with any issues of  
management time, and statutory interest costs after this decision.  
[856] As indicated by counsel for the respondent Crown, issues relating to costs and  
interest, including compliance costs (and whether Acompliance costs@ are an element of injurious  
affection) has been by agreement of the parties deferred.  
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[857] With respect to costs, the Board notes that counsel for the claimant, in their  
closing brief, suggested that the province had taken a Avery aggressive@ position, had started off on  
the Awrong foot,@ had sought to Abelittle or discredit the worth@ of the claimant, and to portray it as  
a Amarginal farm operation.@ For his part, counsel for the Crown suggested the claimant saw the  
crown as engaged in a Adark strategy,@ suggesting this perception was unfair, and irrelevant.  
[858] The Board does consider that how parties conduct themselves (whether the  
Crown or some other expropriating authority, and the owner of the property expropriated) can be a  
consideration in the determination of costs; the Board, however, sees such matters as those referred  
to above by counsel for both parties as not relevant to its task of determining compensation, which is  
the subject of this proceeding.  
[859] The Board orders compensation, for purposes of the present proceeding, fixed  
at $49,902.  
[860] An Order will issue accordingly.  
DATED at Halifax, Nova Scotia, this 16th day of December, 2004.  
____________________________  
Wayne D. Cochrane, Member  
Document: EF315732765317252AEE096592BB9CF7.TMP  


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