Province ordered to pay nearly $800K in costs for expropriation case

The Nova Scotia Utility and Review Board has ordered the province to pay nearly $800,000 in costs for a case involving a couple whose home and business were damaged by a provincial highway twinning project.

The province has already paid the couple almost $600,000 in direct compensation for their losses. The new amount covers legal fees, fees for accountants and an engineer who provided expert testimony during hearings and other disbursements.

The case of Kevin Partridge and Jane DeWolfe began 11 years ago, when the province expropriated a small portion of their land in Antigonish County next to the South River to build a temporary bridge to support the twinning of Highway 104.

Crews filled in a marshy area alongside the river opposite Partridge and DeWolfe's home, removing the natural buffer for rising water levels. The house flooded several times, causing significant damage and destroying equipment and supplies stored on the property for Partridge's log home restoration business.

Partridge and DeWolfe filed a claim with the UARB after the flood, and later appealed the board's decision to the Nova Scotia Court of Appeal.

Nearly $500K earmarked for legal fees

The couple's lawyer, Gavin Giles of McInnes Cooper, said out of the total award of $784,488.79, approximately $500,000 will go toward lawyer fees. But Giles said a portion of the legal fees will be redirected back to Partridge and DeWolfe.

"Quite frankly, we felt that they deserved more in-the-pocket compensation than they had actually received, and we tried to make an adjustment of that to the extent that we could," he said.

While the province — and ultimately taxpayers — are now on the hook for a significant amount of money, Giles said the case was extremely complicated and dragged on for over a decade, due in part to the province's actions.

"It was the government that chose to raise every single possible issue and chase those issues all the way through."

Partridge and DeWolfe were not awarded the full amount they had claimed for costs, which was over $1 million.

"Yes it's a great amount of money, but it was a lot of work, a lot of time," said DeWolfe. "If they hadn't have been so hard-nosed, it could have been settled earlier, cost less fees."

The couple has used some of the earlier award to begin repairing their home, including the septic system, roof, floors and mould remediation, but they still have a lot of work to do.

For now, they are looking forward to putting the whole ordeal behind them.

"Those years, it's almost like I was in survival mode," said DeWolfe. "It's kind of hard to almost take a breather … to let go of a lot of that stress, like, I'm not there yet."

"We'll find some peace hopefully before we die," said Partridge.

A spokesperson for the department of Public Works, Deborah Bayer, said the department accepts the UARB's decision, and payment will be made this month.

New cost assessment process

In 2019, the province introduced a new system of assessing costs in expropriation cases based on, among other factors, set fees per hour rather than the costs laid out by the lawyers and experts themselves.

In a statement, Bayer said the new system was implemented to "increase predictability of costs associated with damage claims, while continuing to ensure impacted property owners have access to relief from proven damages."

Giles said if Partridge and DeWolfe's case had fallen under the new rules, they would have only received about $100,000 for costs rather than $784,488.79.

The new rules also limit people's ability to challenge the province in expropriation cases, Giles said.

Since lawyers' fees are curtailed under the new cost system, they may be reluctant to take cases on, especially if the case is likely to be lengthy and complicated. 

"Unless they're extremely wealthy, a case like this, most homeowners, I suggest, would not be able to fight it unless they were … successful in finding a lawyer who was prepared to work pro bono. And most aren't, not in these circumstances," Giles said.

"Most people simply couldn't afford it and the government would have its way with respect to all of these expropriations."