Whenever an expropriation is to occur, the first issue that needs to be considered is: who are the owners of the land that is being taken? From the expropriating authority’s perspective, who and how many affected owners there are will form a significant part of the risk assessment when deciding whether to expropriate land. From a landowner’s perspective, it is important to be aware of expropriations affecting land that they may have an interest in so that it can be determined whether they have a claim for compensation due to an expropriation. This can become a significant issue sooner than later because whether someone is an “owner” is the threshold issue for whether an expropriating authority is required to pay expert and legal fees under section 39 of the Expropriation Act. An expropriating authority may not be willing to pay expert or legal fees at an early stage without an early determination of whether the claimant is an “owner”.
An “owner” is defined in section 1(k) in the Expropriation Act in a way that includes more than only the “fee simple”, or in other words, the full and ultimate owner of the land that is normally thought of when thinking about who an “owner” is. For the Expropriation Act, an owner could include tenants under a lease, people in possession of land, and essentially anyone else known by the expropriating authority to have an interest in the land regardless of whether they appear on the land title certificate.
This broad and expansive definition of an owner can create uncertainty for expropriating authorities when carrying out their planning and risk assessments. The City of Edmonton attempted to address this issue head-on in Edmonton (City) v Business Care Corp, 2019 ABQB 724. In this application, the City applied for a declaration that “ownership” for the purposes of the Expropriation Act must be interpreted in a way that is consistent with the Land Titles Act. If the City had been successful, the effect would be to limit eligibility of claimants under the Expropriation Act to only those who had registered an interest in land at the Land Titles Office and therefore showing up on a certificate of title when searched. The City argued that adopting this approach would simplify expropriations and save expenses.
The Court found that the bare meaning of each statute stands own its own and that the nature of an interest in land and ownership plays different roles in the each of the Expropriation Act and the Land Titles Act. The Court refused to narrow down the natural definition of an “owner” in the Expropriation Act only “for the sake of convenience of the expropriating authority (para 14) because the purposes of the two statutes are different: the Expropriation Act is remedial with the intention to compensate “owners” whose land was taken without their consent, while the purpose of the Land Titles Act is to provide certainty of title and interest. Bottom line: the broad definition of an owner under the Expropriation Act will be maintained by the Courts.
This case reinforces the need for both potential claimants and expropriating authorities to carefully consider who the owners of land are that are subject to the taking. Expropriating authorities should look beyond those interests that are registered on title when determining who is entitled to receive the required notices of expropriation under the Expropriation Act. Conversely, all those who live or operate land that is being taken should be vigilant about their rights, particularly if their interests in land are not registered on title because it can be very easy for an expropriating authority to overlook these kinds of “owners”. Such potential claimants should seek legal advice to determine whether a claim for compensation can be advanced, even if they do not receive the Notice of Intention to Expropriate from the expropriating authority.
This post is meant to provide information only and is not intended to provide legal advice. Although every effort has been made to provide current and accurate information, changes to the law may cause the information in this post to be outdated.