T-4100-75
Blatchford Feeds Limited (Plaintiff)
v.
The Queen, as represented by the National Capital
Commission (Defendant)
Trial Division, Addy J.—Ottawa, May 13 and 25,
1976.
Expropriation—Offer and acceptance—Subsequent claim
for further compensation in statement of claim—Meaning of
"after the acceptance of the offer"—Plaintiff claiming offer
really not accepted until funds paid to expropriated party—
Defendant arguing claim barred by s. 29(1)(a)(ii) of Expro
priation Act, R.S.C. 1970, c. 16 (1st Supp.) ss. 14, 15, 23,
27(1), 28, 29(1)(a)(î),(2), 30(1), 33.
Plaintiff's property was expropriated by defendant. Accept
ance of the offer of compensation was made November 5, 1974
by mailing the document; it was received November 13, 1974.
Funds were mailed by defendant December 11, 1974, and
received by plaintiff December 16, 1974. The statement of
claim was filed November 14, 1975. Plaintiff claimed that the
words "after the acceptance of the offer" in section 29(1)(a)(ii)
of the Expropriation Act mean not only actual acceptance, but
payment of the funds, i.e., that the. offer is not accepted until
the funds are paid. Plaintiff argued (1) that the general scheme
of the Act calls for such an interpretation; (2) that, since
section 30(1) provides for compensation standing in place of the
land, it must be either adjudged or agreed on, and that since
neither has occurred, plaintiff still has an existing right on
which to sue; and (3) that section 33, providing for payment of
interest, would not be logically operative unless this interpreta
tion were used. Defendant applied to have the claim struck out
as being barred by section 29(1)(a)(ii).
Held, the action is dismissed. (1) The scheme of the Act does
not justify placing any other interpretation on "acceptance of
the offer" other than that which is commonly attached thereto.
(2) There is nothing strange about a right continuing to exist in
substance after recourse to the courts to enforce it has been
statute barred. If section 30(1) has the effect claimed, the net
result would be an absence of statutory limitation at any time
against the expropriated party's right to have the amount
adjudicated on, and section 29(1)(a)(ii) would be meaningless.
(3) Section 33 deals entirely with interest; definitions therein
are limited to that section, and it is still operable even when the
normal meaning is given to "acceptance of the offer". The offer
referred to in section 29(1)(a)(ii) must mean the offer men
tioned in section 14, and, on reading section 15, it is clear that
acceptance and payment are distinct concepts, and separate in
time. Plaintiffs argument would require attributing to the
phrase in section 15 a totally different meaning than that in
section 29(1)(a)(ii). "Acceptance of the offer" must, with
regard to section 15, necessarily refer to acceptance by the
expropriated party of the offer made by the expropriating
authority mentioned in section 14, nothing more. In the absence
of any special statutory provision, resort should be had to
contract law. Acceptance takes place when delivered; when the
mails are used, acceptance is deemed complete at time of
mailing. While there is no evidence of the actual date of
mailing, the offer was received November 13, 1974, more than
one year previous to November 14, 1975, the date the state
ment of claim was filed.
ACTION.
COUNSEL:
J. L. Shields for plaintiff.
M. Senzilet for defendant.
SOLICITORS:
Soloway, Wright, Houston, Greenberg,
O'Grady & Morin, Ottawa, for plaintiff.
Deputy Attorney General of Canada for
defendant.
The following are the reasons for judgment
rendered in English by
ADDY J.: The plaintiff, whose property was
expropriated by the defendant, having received the
offer of compensation provided for in section 14(1)
of the Expropriation Act' and after having accept
ed the offer and received the amount thereof pur
suant to section 15, issued a statement of claim
demanding further compensation.
Before pleading to the statement of claim, the
defendant is applying to have the claim struck out
on the grounds that it is barred by the provisions
of section 29(1) (a) (ii) of the Expropriation Act
which reads as follows:
29. (1) Subject to section 28,
(a) a person entitled to compensation in respect of an expro
priated interest may,
(ii) within one year after the acceptance of the offer, ...
commence proceedings in the Court by statement of claim
for the recovery of the amount of the compensation to which
he is then entitled.....
' R.S.C. 1970, c. 16 (1st Supp.).
Where there is any doubt as to the facts, or
where there is a possibility of any facts existing
which may provide relief against the alleged limi
tation, the statement of claim should not be struck
out at this stage of the proceedings. In the case at
bar, however, there is no dispute whatsoever as to
the facts and they are capable of only one interpre
tation. The issue is strictly one of what law should
be applied to the facts; it would be completely
futile to put the parties to the expense of further
proceedings. The matter should therefore be deter
mined at this stage.
The pertinent facts are as follows: the accept
ance of the offer of compensation was made on the
5th November 1974 by mailing the acceptance; the
document accepting the offer was received by the
defendant on the 13th of November 1974; the
funds were mailed by the defendant on the 11th of
December 1974 and were received by the plaintiff
on the 16th of December, 1974; the statement of
claim was filed on the 14th of November 1975.
The plaintiff claims that the words "after the
acceptance of the offer" in the above-quoted sec
tion 29(1)(a)(ii) must be taken to mean not only
the actual acceptance of the offer itself by the
plaintiff but the payment of the funds by the
defendant. He argued in other words that the offer
is really not accepted until the funds are paid by
the Commission to the expropriated party.
The argument is a threefold one:
(1) That the general scheme of the Act, and espe
cially sections 23, 27(1), 28, 29(1) and (2), 30(1)
and 33, make such an interpretation mandatory.
(2) That since section 30(1) provides for the com
pensation standing in the place and stead of the
land, the former must either be adjudged or agreed
upon and that, since neither a judgment or an
agreement has occurred, the plaintiff still has an
existing right on which he can sue.
(3) That section 33, providing for payment of
interest, would not be logically operative unless the
interpretation urged upon me by the plaintiff were
used.
Dealing with the first argument, I have carefully
examined the general scheme of the Act and, in
particular, the sections quoted by counsel and in
no way can I find that the scheme of the Act
would justify the Court putting any other interpre
tation on the words "acceptance of the offer" but
that which is commonly attached to the meaning
of the words "offer" and "acceptance of the offer."
As to the second argument, there is nothing
strange about a right continuing to exist in sub
stance after recourse to the Courts in order to
enforce it has been statute barred. Most limita
tions bar legal recourse but do not extinguish the
right; they merely prevent the Courts from taking
any action to enforce it. Furthermore, if section
30(1) does have the effect which counsel for the
plaintiff argues it must have, the net effect would
be that there would be no statutory limitation at
any time against the expropriated party's right to
have the amount of compensation adjudicated
upon and section 29(1)(a)(ii) would be completely
meaningless.
As to the third argument, section 33 deals
entirely with interest. The definitions contained in
that section are specifically limited to the provi
sions of that section and I find further that the
section is still completely operable even when one
gives to the words "acceptance of the offer" in
section 29(1)(a)(ii) a normal everyday meaning.
More importantly, the offer referred to in sec
tion 29(1)(a)(ii) must necessarily mean the offer
mentioned in section 14 and when one reads sec
tion 15, the text of which is as follows:
15. Where an offer of compensation has been made to any
person under section 14, the full amount thereof shall, forth
with upon the acceptance of the offer, be paid to that person.
it is clear that the acceptance of the offer and the
payment of the money are two distinct concepts
and separate as to time; in acceding to the plain
tiff's argument one would therefore have to attrib
ute to the words "acceptance of the offer" in
section 15 a meaning entirely different from that
in section 29(1)(a)(ii).
In conclusion, as there exists no valid reason
whatsoever to give the very special meaning
advanced by the plaintiff to the words "acceptance
of the offer" when found in this last-mentioned
section, I find that they must bear therein their
common everyday meaning and, having regard to
section 15, must necessarily refer to the accept
ance by the expropriated party of the offer made
by the expropriating authority mentioned in sec
tion 14 and to nothing more.
Where there is no special statutory provision,
the meaning attributed to "acceptance" and "off-
er" in contract law and the principles governing
their existence and relationship to each other
should be applied.
The acceptance of an offer takes effect when
delivered to the other party. Where both parties
have used the mails in making and in accepting an
offer, unless there is evidence of a contrary inten
tion, the acceptance is completed and considered
as having been communicated to the offeror at the
time of mailing. There is no evidence of the actual
date of mailing of the acceptance but the evidence
is clear that the offer was actually received on the
13th of November 1974, which is obviously more
than one year previous to the 14th of November
1975, the date when the statement of claim was
issued.
For the above reasons the action will be dis
missed but, under the circumstances, without
costs.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.