Canadian Constitution Foundation thrilled with SCC decision that expands the test for constructive takings and protect property rights

Canadian Constitution Foundation thrilled with SCC decision that expands the test for constructive takings and protect property rights

OTTAWA: The Canadian Constitution Foundation (CCF) is thrilled with the outcome in the Supreme Court decision today in Annapolis Group Inc v Halifax Regional Municipality. The case involves the test for constructive takings.

In the case, the property owner and developer Annapolis alleged that the city of Halifax arbitrarily refused Annapolis’ requests for secondary planning approval, which has kept the land undeveloped for 15 years. Further, Halifax has promoted the privately owned Annapolis property as a public park, including by allowing trail signs to be posted with the Halifax Regional Municipality logo. However, the Nova Scotia Court of Appeal held that Annapolis did not satisfy the test for a “constructive taking”, also referred to as de facto expropriation.

The Supreme Court has held that Annapolis can bring a claim for constructive taking. 

“This outcome was basically the best case scenario from our perspective, and we are thrilled with this result. The city of Halifax used its powers to obtain the benefit of a park without paying for it, and the Supreme Court has now held that the property owner can bring a claim for a constructive taking. This is a win for property owners against arbitrary and unjust takings by government,” said CCF Litigation Director, Christine Van Geyn. 

In this case, the CCF was represented by Malcolm Lavoie of Miller Thompson LLP.

“I am very pleased with today’s outcome,” said Mr. Lavoie. “The Court’s decision significantly expands the protections available to Canadian property owners who lose their rights through regulatory measures. Compensation will now be presumptively available in a much wider range of cases.”

“Before today, the biggest obstacle to a successful claim to compensation based on a constructive taking was the requirement that the government acquire a ‘beneficial interest’ in the property. Today, the Court clarified that a ‘beneficial interest’ simply means some kind of advantage. In a case involving constructive takings, the focus will now be on the effect of the measure on an owner, not what was acquired by the government.”

“The Court also explained that the line between a regulation and a taking occurs where a measure deprives a claimant of the use and enjoyment of her property in a substantial and unreasonable way, or effective confiscates the property. This flexible approach recognizes the many different ways in which regulations can deprive an owner of her rights.”

“I was extremely gratified to see that the Court adopted language and arguments from the Canadian Constitution Foundation’s factum in this case. I think we made a real difference in a close case.”

“I want to thank the Canadian Constitution Foundation for the opportunity to present arguments on its behalf. It is clear that the CCF has developed a strong reputation before the Court and that its arguments are given serious consideration. I also want to thank my co-counsel, Adrienne Funk, for her important contributions to the case,” concluded Lavoie.

The decision can be read in full HERE

A plain language version of the decision can be read HERE