The Supreme Court Of Canada Redefines Constructive Expropriation

The Supreme Court of Canada recently released its 5-4 decision in Annapolis Group Inc. v. Halifax Regional Municipality.¹ The split decision effectively redefines the test for proving de facto expropriation by no longer requiring that public authorities gain a proprietary interest in the land at issue. Instead, and in contrast to previous decisions, the Court found that it was sufficient for landowners to show that the public authority obtained some "advantage" flowing from the property. This arguably lower bar was accompanied by a finding that an authority's intention could be relevant (although not determinative) in proving a de facto expropriation.

The Law

Expropriation is the involuntary acquisition of private property by a public authority for public purposes. Expropriation can occur in one of two ways. A de jure taking is the more common form, in which a public authority acquires title to private land in return for compensation, typically through a