Sorry about the headline, but come on, man! We have to use clickbaity headlines every now and then to get your attention. Here's the latest in a case we've been following.
Yesterday, the Supreme Court of Canada heard oral arguments in Annapolis Group Inc v. Halifax Regional Municipality, a case involving "de facto expropriation," or what we in the U.S. might think of as a regulatory taking.
We watched the livestream (along with a few of our northern colleagues), and if you missed it, the recording of the (2-hours and 30-minutes!) arguments can be found here -- in English, with simultaneous French translation, if you want to have some extra fun.
Yes, there really are that many Justices
and lawyers on the argument
The Supreme Court is considering whether Halifax's refusal to approve Annapolis Group's development applications (consistent with its residential zoning, more specifically "future serviced development") on Annapolis' 965-acre parcel resulted in an de facto expropriation. Instead of granting the application, Halifax "promoted the Annapolis Lands as a park by inviting the public to use them as such and permitting its logo to be placed on trail signs directing the public onto them." Annapolis factum at 53. Come on it, the water's fine!
We all know that Canada law treats property rights differently than in the U.S. The biggest difference--as readers of this blog have long been aware--is that in Canada, property rights are not constitutional rights. Up north, property rights are either common law or statutory. But that being said, in some ways Canada does it better, so you should not presume that simply because Canada law doesn't constitutionalize property that owners' rights are somehow lesser. Before watching the arguments, you may want to review this case, which supplies much of the background: Canadian Pacific Railway v. Vancouver (City), 1 S.C.R. 227, 2006 SCC 5 (2006).
But whatever your opinion, listening to the oral arguments will be totally familiar to U.S. property mavens: de facto expropriation, loss of all reasonable uses, zoning, takings, beneficial use, De Keyser, compensation, physical invasions, and the like. And a few things that we're not used to hearing, like references to "the Crown," "the book" (the excerpts of record), and "factums" (aka briefs)." As the Supreme Court's website describes the case:
Whether exercise of a zoning power which deprives a landowner of the reasonable uses of its land in favour of creating a public park carries an implied obligation to pay compensation - Whether test for de facto expropriation should be revisited - Whether motive of government authority is a relevant consideration in considering whether a de facto taking occurred?Annapolis Group Inc. seeks to develop lands that it owns. The lands lie within the boundary of Halifax Regional Municipality. Council of Halifax Regional Municipality declined to commence a planning process and to amend a by-law, both of which are required to permit development of the lands. Annapolis Group Inc. alleges Halifax Regional Municipality encourages members of the public to use the lands as a public park. It commenced an action seeking damages for alleged de facto expropriation, abuse of public office and unjust enrichment. Halifax Regional Municipality filed a motion for summary judgment dismissing the claim of de facto expropriation. The motions judge dismissed the motion. The Court of Appeal allowed an appeal and dismissed the claim of de facto expropriation.
This being Canada, everyone was really, really polite, even when the Justices were aggressively questioning the advocates. Lots of "sorry" (even from the Justices), and yes, "about." And the lawyers and the Court were all robed up (no wigs, sorry).
We urge you to check it out.
