TORONTO: The Canadian Constitution Foundation (CCF) will appear as an intervener in Annapolis Group Inc v Halifax Regional Municipality. The case involves the test for public de facto expropriation and will be heard by the Supreme Court of Canada on February 16.
“The facts of the case in Annapolis are compelling and any casual observer would assume that what happened to Annapolis amounts to an expropriation. The city has used its powers to obtain the benefit of a park without paying for it. But the current test for de facto expropriation imposes such an impractically high threshold that the claim is almost impossible to make out,” said CCF Litigation Director, Christine Van Geyn. “That is why we are pleased to intervene in this case to propose a new test for de facto expropriation.”
In the case, Annapolis alleges that Halifax has 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 Lands 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 de facto expropriation.
“The facts of the case in Annapolis are compelling and any casual observer would assume that what happened to Annapolis amounts to an expropriation. The city has used its powers to obtain the benefit of a park without paying for it. But the current test for de facto expropriation imposes such an impractically high threshold that the claim is almost impossible to make out,” said CCF Litigation Director, Christine Van Geyn. “That is why we are pleased to intervene in this case to propose a new test for de facto expropriation.”
In the case, Annapolis alleges that Halifax has 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 Lands 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 de facto expropriation.
“In our view, a de facto expropriation takes place whenever government action results in a fundamental deprivation of the enjoyment of the attributes of ownership. Whether it is by denying the owner’s right to exclusive possession, or by denying the owner’s right to the beneficial use of the property,” concluded Van Geyn.
In this case, the CCF is represented by Malcolm Lavoie of Miller Thompson LLP.
The hearing can be live streamed from the Supreme Court of Canada website here.
