Supreme Court Expands The Doctrine Of Constructive Expropriation

Canada's law on de facto / constructive expropriation has been clarified and broadened by the Supreme Court's recent 5-4 decision in Annapolis Group Inc. v. Halifax Regional Municipality, 2022 SCC 36.

In joint reasons for judgement, Justices Côte and Brown, with Chief Justice Wagner and Justices Moldaver and Rowe concurring, held that a constructive taking occurs where: (1) a beneficial interest — understood as an advantage — in respect of private property accrues to the state, which may occur where the use of such property is regulated in a manner that permits its enjoyment as a public resource; and (2) the impugned regulatory measure removes all reasonable uses of the private property at issue. Moreover, they held that courts assessing de facto expropriation or constructive taking claims "must undertake a realistic appraisal of matters in the context of the specific case, including but not limited to: