Expropriation Law: A Year In Review

This article summarizes the most significant expropriation cases of 2019 from across the country, as selected by Gowling WLG's National Expropriation Law Group. The decisions are not listed in rank order.

Unregistered Lease Interests Protected

Edmonton (City) v. Business Care Corp, 2019 ABQB 724 (CanLII)

The City of Edmonton expropriated lands known as the Edmonton City Centre Airport, including land possessed and occupied by four subtenants of a leaseholder. The leaseholder's interest in the expropriated lands was registered on title, under the Land Titles Act, but the interests of the subtenants were not registered. The City applied to the Alberta Court of Queen's Bench for a declaration that no compensation was owed to the subtenants because their interests in the land had not been expropriated for the purposes of the Expropriation Act. While that Act does not define 'title,' 'land' is defined to include "any estate or interest in land." The City argued that "estate or interest in land" should be interpreted in the same manner as under the Land Titles Act, which would preclude a claim by the subtenants for their unregistered interests.

In rejecting the City's argument, the Court observed that legislation is to be interpreted purposively, and that the purposes of the Expropriation Act and the Land Titles Act are different. Further, the Expropriation Act is a remedial statute, which must be interpreted remedially: its purpose is to compensate landowners, as defined in the Act, "when their interests are taken without their consent." Since the Act's definition of 'owner' includes any "person who is in possession or occupation of the land," the Court found that it would have been inappropriate to adopt the City's proposed interpretation. This decision identifies that the Alberta legislation offers protection to citizens with unregistered interests affected by an expropriation, and reinforces the remedial nature of expropriation legislation.

Compensation for Delay

Tanchuk v. Ontario (Transportation), 2019 CanLII 86350 (ON LPAT)

The Minister of Transportation for Ontario expropriated land for a highway expansion in Kitchener, Ontario adjacent to which the claimants operated a furniture and mattress retail business. There was a substantial, 10 year delay between the initial public information sessions for the highway expansion project and the expropriation. During much of this period, the claimants' plan to expand its business was impeded by the looming expropriation. The claimants ultimately relocated and expanded their business at another site, and advanced substantial claims for business loss and disturbance damages, which the authority opposed vigorously.

The authority argued that the claimants' business losses were caused by their failure to select a suitable relocation site, and that compensation for these losses should not be awarded. The Local Planning Appeal Tribunal rejected this argument because the claimants selected their relocation property with professional assistance, including that of a professional land use planner. The authority also argued that compensation should not be awarded for further business losses relating to the delay between the announcement of the highway expansion and the expropriation. In making this argument, the expropriating authority relied on Ontario-wide market statistics. The claimants' expert focussed its analysis on the Kitchener-Waterloo trading area, which supported a higher level of compensation. The Tribunal accepted the claimants' argument that it was inappropriate to use the Ontario-wide statistics because they were heavily skewed by the Toronto market, which is a very different trading area from Kitchener-Waterloo.

The result was that the Tribunal awarded significant damages for business losses and disturbance that occurred during the delay period, emphasizing the importance of advancing claims for losses occurring in the 'shadow' of the expropriation. This case also demonstrates the value added by consulting a team of...