Received an Expropriation Notice? You May Have More Options Than You Think

Receiving an Expropriation Notice can raise immediate questions about what it means for your property and what steps you can take. One right that may be available to you is the right to request an inquiry.

Not every taking qualifies for an inquiry. Your options for requesting an inquiry depend on whether the proposed expropriation is non-linear, a distinction that can significantly affect whether an officer is assigned and how the process unfolds. Once an officer is assigned, the expropriating authority has the opportunity to request the officer to refuse the inquiry. Once both parties have had the opportunity to be heard, the officer determines whether the inquiry will proceed, considering a range of factors that can vary in each case.

If an inquiry is held, it offers an opportunity to review how the proposed expropriation will be carried out and to suggest potential alternatives.

Timing is critical in these circumstances as pursuant to s. 10 of the Expropriation Act, RSBC 1996, c. 125, a request for an inquiry must be submitted within 30 days of receiving the Expropriation Notice. Missing this deadline could mean losing the opportunity entirely.

Determining whether your expropriation qualifies as non-linear, and whether an inquiry could be strategically useful, is not always straightforward. What applies in one case may not apply in another, and the distinctions can have significant implications for your rights. Landowners who receive an Expropriation Notice should consult a lawyer with experience in this field to understand their rights and options.

Call Amy Salak at 604.580.7066 to schedule a free, no-obligation meeting with Doug Conolly to discuss your options.

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The post The Right to an Inquiry Following Receipt of an Expropriation Notice appeared first on McQuarrie Legal Services.

Our BC municipalities are constantly changing and growing and from time to time, municipal and federal governments undertake projects designed to enhance public infrastructure, safety, and services. These projects may require the acquisition of privately owned land, either in whole or in part.

What You Need to Know

• Project Purposes: Land may be acquired for various purposes such as new roads, public utilities, parks, schools, or government buildings.
• Notification: If your property is identified as being affected by a municipal or federal project, you may first receive informal notice detailing the scope of the project and the potential that your property may be involved and may need to be acquired.
• Your Rights: You have the right to receive fair compensation for your property. You may also have the opportunity to discuss terms and, in some cases, raise concerns or objections by way of negotiations before the formal expropriation process commences.

If You Receive Notice of a Public Project that May Affect Your Property:

1. Contact McQuarrie for a free initial consultation.
2. Read all correspondence carefully and note any deadlines.
3. Participate in any scheduled public meetings or hearings to ensure your voice is heard.

Your property and your concerns matter. Our goal is to ensure that all homeowners are treated fairly and kept informed throughout any land acquisition process.

For all questions and inquires, contact Douglas J. Conolly, c/o Amy Salak at 604.580.7066.

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The post Expropriation Law: Important Notice for Homeowners appeared first on McQuarrie Legal Services.

Introduction

Where the government forcibly takes an individual’s property for public use or in the public interest through formal expropriation procedures, this is referred to as de jure taking. In these situations, the strict procedural requirements set out in the Expropriation Act^[1] must be followed, and the respective property owner must be compensated. However, situations may arise where the actions of a government body interfere with the property rights of an individual or entity to such an extent that the property is effectively taken, despite no formal process of expropriation or transfer of title. These situations are referred to as de facto or constructive expropriation.

Constructive expropriation is an important concept for both property owners and government entities, though for different reasons. For property owners, the obvious concern is ensuring compensation when property is taken absent the formal expropriation process. For government entities, the concern is understanding the boundaries within which government may act without risking exposure to liability for constructive expropriation claims.

For many years property owners have endured (and governments have enjoyed) a restrictive legal test for constructive expropriation. In 2022 however, the Supreme Court of Canada addressed the test for constructive expropriation in Annapolis Group Inc. v. Halifax Regional Municipality,^[2] and extensive debate ensued regarding Annapolis’ effect on the law of constructive expropriation. Some viewed Annapolis as simply a re-statement of the law, whereas others viewed it as a departure that opened the door for constructive expropriation claims.

This blog weighs in on the above debate by looking at how Annapolis has been applied in the three years since its release.

The Evolution of Constructive Expropriation

At common law, a government act that deprives a property owner of all reasonable use of its property constitutes a constructive taking and imposes an obligation on the government to compensate the property owner.^[3] The legal test for establishing constructiveexpropriation was initially set by the Supreme Court of Canada in Canadian Pacific Railway Co. v. Vancouver (City), which requires the government act to result in:

1. the government’s acquisition of a beneficial interest in the property or flowing from it; and
2. removal of all reasonable uses of the property.^[4]

The test set out in Canadian Pacific proved very challenging to satisfy, making successful claims for constructive expropriation quite rare. However, in 2022 the SCC re-visited the test in Annapolis leading some to speculate that constructive expropriation claims might now have a better chance of success.

In a 5-4 decision, the majority in Annapolis purported to clarify the first branch of the Canadian Pacific test but arguably expanded it by broadening what constitutes a beneficial interest in property. Pursuant to the majority’s decision, a beneficial interest is to be understood as an “advantage” with respect to private property that accrues to the state, and which may arise where private property is regulated in a manner that permits its enjoyment as a public resource.^[5] Furthermore, the majority directed that the beneficial interest inquiry is concerned with the effect of a regulatory measure on the landowner, and the government’s intention is a material fact to be considered in constructive expropriation claims.^[6]

The majority’s decision was met with a strong dissent.  The dissenting justices felt that by replacing beneficial interest with the broader notion of “advantage”, the majority departed from the Canadian Pacific test and significantly expanded the potential liability of public authorities when regulating land use in the public interest.^[7]

Constructive Expropriation Post-Annapolis

Annapolis was recently applied in Teal Cedar Products Ltd. v. British Columbia,^[8] a case concerning the effect of British Columbia’s Haida Gwaii Land Use Objectives Order [the “Land Use Order”]. Teal Cedar Products Ltd. [“Teal”] held licenses to harvest timber on Crown lands in Haia Gwaii, carried out harvesting operations on said lands and owned several mills for processing timber. Starting in 2005, the Haida Nation and the Province embarked on a land use planning process which culminated in the Land Use Order being enacted in 2010. The effect of the Land Use Order was to reduce the available lands upon which licensees could harvest timber.

Teal brought a challenge to the Land Use Order alleging, among other things, that the Land Use Order constituted a constructive taking of its licenses to harvest timber.^[9] Teal argued that the licenses conferred a form of property interest that is susceptible to a constructive taking and that by prohibiting harvesting in certain areas, the Land Use Order constructively took Teal’s licenses as harvesting was no longer viable.^[10]

The Court set out the law from Canadian Pacific and Annapolis and stated that the Land Use Order did not amount to a constructive taking of Teal’s harvesting licenses. With respect to the first branch of the test, the Court stated that the Province did not appropriate any benefit. Instead, the Land Use Order “simply put different or modified parameters in place” which “does not give a benefit or advantage to the Province any more than any legislation or regulation provides a benefit to the Province.”^[11] In essence, the Court found that the Land Use Order conferred only a generalized public benefit which is not the type of benefit or advantage that was contemplated in Annapolis.^[12]

Annapolis was also recently applied by the Alberta Court of Appeal in Altius Royalty Corporation v. Alberta,^[13] a case involving the effect of federal and provincial government action on Altius Royalty Corporation’s [“Altius”] royalty interests in a coal mine in Genessee, Alberta.  The coal from the mine fueled a neighbouring power plant which produced electricity in Alberta. However, arising out of the 2015 United Nations Framework Convention on Climate Change, the government of Canada created regulations which established a performance standard for coal-fired power plants to be met by 2030. In turn, the government of Alberta entered into an “Off-Coal Agreement” with the owners of the Genessee power plant whereby the owners agreed to end emissions by 2030.

In 2018, Altius filed a statement of claim against the respondents, Canada and Alberta, alleging that they had constructively expropriated Altius’ royalty interests in the Genessee coal mine. Canada and Alberta applied for summary dismissal of the action in 2021, which came before an applications judge pre-Annapolis. The applications judge dismissed Altius’ statement of claim on the basis that neither Canada nor Alberta “acquired a beneficial interest in property or flowing from it” as required by the Canadian Pacific test^[14] and this was affirmed on appeal by a chambers judge.^[15]

Altius then appealed to the Alberta Court of Appeal, and by this time the Supreme Court of Canada had released its decision in Annapolis. Altius argued that the judges below erred because constructive expropriation does not require the acquisition of a beneficial interest – the acquisition of an advantage in respect of property was sufficient.^[16] Furthermore, Altius argued that the advantage flowing to the governments was avoided healthcare and environmental expenses.^[17] In making these arguments, Altius was putting to the test the notion that Annapolis expanded the law of constructive expropriation.

However, the Alberta Court of Appeal’s decision seems to effectively foreclose this concern. The Court found that the government’s “prediction of health and environmental benefits resulting from the reduction of greenhouse gas emissions described benefits to the public, not… an advantage flowing to the state.”^[18] The Court also emphasized that Annapolis did not change the numerous precedents in which courts have found that a generalized public benefit does not constitute an advantage flowing to the state for the purposes of constructive expropriation.^[19]

Conclusion

In considering Teal Cedar and Altius, it appears that Annapolis has not amounted to a marked departure from and expansion to the law of constructive expropriation. In the three years since Annapolis was released, it is evident that the bar for succeeding on constructive taking claims remains high and difficult to meet.

While the bar remains high, a lesson can be gleaned from Annapolis, Teal Cedar and Altius which people should be aware of when considering constructive expropriation claims. It appears fair to say that success at the first stage of the test depends at least in part on the degree of specificity of the benefit or advantage said to be acquired by the state. In this sense benefits or advantages may be understood as falling along a continuum between general and specific. The more specific a benefit or advantage the easier it will be to establish that the benefit or advantage was specifically acquired by the state. Conversely, the more general a benefit or advantage the more likely a court will find it belonging to the general public and thus be insufficient for the purposes of constructive expropriation.

[1] Expropriation Act, RSBC 1996, c. 337.
[2] Annapolis Group Inc. v. Halifax Regional Municipality, 2022 SCC 36 [“Annapolis”].
[3] Canadian Pacific Railway v. Vancouver (City), 2006 SCC 5 [“Canadian Pacific”].
[4] Canadian Pacific, at para. 30.
[5] Annapolis, at para. 4.
[6] Annapolis, at para. 38.
[7] Annapolis, at para. 85.
[8] Teal Cedar Products Ltd. v. British Columbia, 2025 BCSC 595 [“Teal Cedar”].
[9] Teal Cedar, at para. 66.
[10] Teal Cedar, at para. 66.
[11] Teal Cedar, at para. 98.
[12] Teal Cedar, at paras. 99-100.
[13] Altius Royalty Corporation v. Alberta, 2024 ABCA 105 [“Altius”].
[14] Altius Royalty Corporation v. Alberta, 2021 ABQB 3, para. 77.
[15] Altius Royalty Corporation v. Alberta, 2022 ABQB 255.
[16] Altius, at para. 13.
[17] Altius, at para. 29.
[18] Altius, at para. 32.
[19] Altius, at para. 32.

Need Help With Your Expropriation or Property Dispute Case?

Contact us today to discuss your case and explore your options for fair compensation.

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Disclaimer: This blog post is intended for informational purposes only and does not constitute legal advice. While we strive to provide accurate and up-to-date information, every legal situation is unique. For personalized legal advice tailored to your specific case, please consult with a qualified lawyer. We are happy to assist you with your legal needs, but this post should not be relied upon as a substitute for professional legal counsel.

The post Has Annapolis Expanded the Law of Constructive Expropriation in BC? appeared first on McQuarrie Legal Services.

1. What is a section 3 agreement?

When the government intends to take an individual’s land pursuant to the Expropriation Act, RSBC 1996, c. 125 [the “Act”], one of the options a landowner has is to enter into a section 3 agreement. Section 3 agreements are used in situations where the landowner agrees to transfer or dedicate their land to the “expropriating authority” but cannot necessarily agree with the compensation to be paid.

When section 3 agreements are used, there is no “expropriation” in the strict sense of the word because the land is transferred by consent. Proceeding in this way can be advantageous for both landowners and expropriating authorities because it avoids the formal proceedings for expropriation under the Act while preserving an owner’s right to claim compensation within 1 year.

Call Amy Salak at 604.580.7066 to schedule a free, no obligation meeting with Doug Conolly to discuss your options if you have signed or have been asked to sign a section 3 agreement.

2. What can I do if I disagree with an amount paid to me by an expropriating authority who takes my land?

If a landowner disagrees with the compensation they received from an expropriating body, the landowner can apply to the court for a determination of the compensation to be paid. It is important for the landowner to act quickly in these circumstances as pursuant to s. 25 of the Expropriation Act, if a court application is not made within one year, the landowner is deemed to have accepted any advance payment as full and final compensation.  

Call Amy Salak at 604.580.7066 to schedule a free, no obligation meeting with Doug Conolly to discuss your options.

3. Is an expropriating authority permitted to take my property without my consent?

The short answer is, yes. Pursuant to the Expropriation Act, RSBC 1996, c. 125, “expropriating authorities” can take an individual’s property without consent through a process called expropriation. There are a number of expropriating authorities that have the power to take an individual’s property without consent, such as municipalities, school boards, and even TransLink, to name a few.

While the procedure for expropriation is governed by the Expropriation Act, an expropriating authority’s power to expropriate comes from other legislation. For example, the City of Vancouver is given the power to expropriate pursuant to the Vancouver Charter, SBC 1953, c. 55, s. 533, while other municipalities are given the power to expropriate pursuant to the Community Charter, SBC 2003, c. 26, s. 31.

However, it is important to note that landowners do have rights when faced with an expropriation of their land. Most significantly, a landowner must be fairly compensated. Since determining the appropriate compensation is often a highly complex matter, a landowner should always consult an experienced lawyer in the area to ensure they are adequately compensated.

Call Amy Salak at 604.580.7066 to schedule a free, no obligation meeting with Doug Conolly to discuss your options.

4. How long do I have to claim additional compensation if my lands have been expropriated?

If a landowner has their land expropriated and is not satisfied with the compensation received, the landowner must act quickly. Pursuant to section 25 of the Expropriation Act, RSBC 1996, c. 125, a landowner has one year from the date of receiving payment to make an application to court and claim additional compensation. If an application is not made within one year of receiving payment, the landowner will be prevented from claiming any additional compensation.

Call Amy Salak at 604.580.7066 to schedule a free, no obligation meeting with Doug Conolly to discuss your options and ensure you do not miss your time limit to apply for additional compensation.

5. What heads of damage can I be compensated for as a result of expropriation?

There are a number of different heads of damages that a landowner can be compensated for when their land is expropriated, including, but not limited to:

• fair market value;
• disturbance damages;
• injurious affection;
• ancillary rights; and
• costs.

Fair market value of the land being expropriated is the foundation of a landowner’s compensation. The expropriating authority must pay to the landowner whatever amount the expropriated land would have sold for if it had been sold in the open market by a willing seller to a willing buyer.

Disturbance damages are all reasonable costs, expenses, and financial losses that are directly attributable to the disturbance caused to the landowner by the expropriation.

Injurious affection refers to the decrease in value of the remainder of their lands that are not expropriated in a partial taking situation.

Ancillary rights typically refer to implied rights that are deemed necessary in order to exercise express rights taken by an expropriating authority. In these circumstances, the landowner is entitled to compensation.

Finally, a landowner may entitled to compensation for legal and other costs that they incur as a result of expropriation.

As expropriation can be a highly complex and specialized area of the law, landowners faced with expropriation of their land should consult a lawyer with specific knowledge and expertise in this area to ensure they receive appropriate compensation.

Call Amy Salak at 604.580.7066 to schedule a free, no obligation meeting with Doug Conolly to discuss what heads of damages may be applicable in your unique situation.

Need Help With Your Expropriation or Property Dispute Case?

Contact us today to discuss your case and explore your options for fair compensation.

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Disclaimer: This blog post is intended for informational purposes only and does not constitute legal advice. While we strive to provide accurate and up-to-date information, every legal situation is unique. For personalized legal advice tailored to your specific case, please consult with a qualified lawyer. We are happy to assist you with your legal needs, but this post should not be relied upon as a substitute for professional legal counsel.

The post Expropriation in British Columbia: Your Rights, Compensation, and Legal Options Explained appeared first on McQuarrie Legal Services.