In a recent decision, the Supreme Court of Canada
("SCC") has expanded the scope for constructive taking
(also called de facto expropriation) claims.
They have removed the requirement to show that a government has
actually acquired a proprietary interest in the relevant land whose
development rights the they impair. It has been replaced with the
much broader category of demonstrating that the government has
obtained an ‘advantage' short of a true
beneficial interest.
In Annapolis Group Inc. v Halifax Regional
Municipality, 2022 SCC 36 (“Annapolis”),
a developer had sought to develop its lands since 2007, making
multiple attempts which were ultimately refused. The municipality
had, since 2006, adopted a 25-year planning strategy which reserved
a portion of the relevant lands for a future park. This prevented
serviced development of the lands without a municipal resolution.
Annapolis sued, alleging a constructive taking, on the basis that
the municipality intended
