Expropriation Law 2020: A Year In Review - 16 February 2021

• Published date: 18 February 2021
• Subject Matter: Litigation, Mediation & Arbitration, Real Estate and Construction, Arbitration & Dispute Resolution, Trials & Appeals & Compensation, Construction & Planning, Real Estate
• Law Firm: Gowling WLG
• Author: Mr John Doherty, Roberto Aburto, Sahil Shoor, Tristan Neill and Carolina Campos

This article summarizes the most significant expropriation cases of 2020 from across the country, as selected by Gowling WLG's National Expropriation Law Group. The decisions are not listed in rank order.

Know your forum

Edmonton (City) v 1524416 Alberta Ltd., 2020 ABLCB 2 (CanLII)

Edmonton (City) v Capital Region MRI Ltd., 2020 ABLCB 3 (CanLII)

Edmonton (City) v Autobuy Leasing Corp., 2020 ABLCB 4 (CanLII)

Thoreson v Alberta (Infrastructure), 2020 ABCA 146 (CanLII)

Section 29 of Alberta's Expropriation Act establishes an expropriated landowner's right to a determination of compensation. Subsection 29(1) provides that this compensation shall be determined by the Alberta Land Compensation Board, but subsection 29(3) provides that "when the expropriation is by the Crown, the owner may elect to have the compensation fixed by the [Alberta Court of Queen's Bench] and in that case the provisions of this Act relating to determination of compensation by the Board apply with all necessary modifications to the proceedings before the court." A series of cases released in 2020 demonstrates the importance of understanding the differences between these two decision making bodies.

The City of Edmonton applied to have three Applications for Determination of Compensation before the Alberta Land Compensation Board dismissed for delay. In Edmonton (City) v 1524416 Alberta Ltd, Edmonton (City) v. Capital Region MRI Ltd. and Edmonton (City) v. Autobuy Leasing Corp, the Board refused, finding that it did not have the authority to dismiss the applications due to delay. In reaching this decision, the Board considered the purpose of Alberta's Expropriation Act, which is to ensure that expropriated landowners are properly compensated and made whole. The provisions of the Act do not allow for dismissal due to delay. The Board determined that to dismiss the claims would be contrary to the purpose and scheme of the Act. Thus, the board had no jurisdiction to dismiss the claims due to delay, which would effectively eliminate the landowner's rights.

In Thoreson v. Alberta (Infrastructure) the Alberta Court of Appeal upheld the decision of an Alberta Court of Queen's Bench case management judge to strike an expropriated landowner's business loss claim for delay. The expropriation occurred in 2004, and the landowners brought an action against the Province of Alberta before the Alberta Court of Queen's Bench in 2005. The business loss portion of the claim was severed from the land compensation claim in 2009. After significant delay in advancing the claim and after missing numerous procedural order deadlines, the Province applied to strike the claim pursuant to Rule 4.31 of the Alberta Rules of Court. The case management judge noted that in the 14 years since the claim was initiated, there was nothing to prevent the landowners from advancing their business loss claim.

On appeal, the landowners argued that it would be contrary to the purpose of Alberta's Expropriation Act to permit the Province to avoid its duty to compensate by using the Rules of Court to have compensation claims dismissed. The Alberta Court of Appeal determined, however, that s. 29(3) of the Act required the Court to determine compensation, but not procedure, in accordance with the Expropriations Act, and that litigants would reasonably expect Court procedures to differ from those of an administrative tribunal. This case provides clear direction that the Alberta Rules of Court apply to expropriation claims brought in the Alberta Court of Queen's Bench, except to the degree that those rules conflict with the Expropriation Act. Expropriated landowners should be careful to consider the procedural differences between the Court and the Land Compensation Board between before choosing which forum will determine their claim.

Hedging your Bets: IA No taking cases in Superior Court and LPAT

Beniuk v. Leamington (Municipality), 2020 ONCA 238

An appellant...