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As a taxing authority, the government is forever taking our property away from us. However,
if the government takes your property outside of its taxation scheme it is called expropriation.
If anyone else outside of the government does this, they would likely be prosecuted for robbery.
Government, some have thought, should be able to take your property if it is in need of it, it
seems, for any reason. If one receives an expropriation notice, then, -- that's the end of it;
the seized property, under the law, becomes the property of the government. The former property
owner can only argue that he should receive "fair compensation" and is allowed to go all the
way to court [s. 60(1)] if he is in disagreement as to what the government thinks would be "fair
compensation." The procedure on how the government expropriates a person's property and what
rights that person has in such a situation, is covered off in a provincial statute, which, here
in Nova Scotia, we call the Expropriation Act, R.S.N.S. 1989, c. 156.
There is a group of people hired by the government who are "independent" of the expropriating
authority who will decide what "fair compensation" might be, with a full opportunity for all
parties to parade as many "expert witness they might like." From there, if the expropriated
party is unhappy with the price, he or she can go find a Supreme Court judge who has the
authority to get involved. The courts, however, dislike to get too involved in this highly
technical area of the law.
"While the court has power to review any questions of law or fact or mixed law and
fact, that some substantial consideration should be given to findings of fact by the Board.
Unless the Board is shown to be wrong its findings of fact should stand. If a finding of fact
is clearly wrong then obviously it should be corrected. On the other hand, the findings of fact
which may involve credibility and a weighing of the evidence of witnesses should not be lightly
set aside. After all the Board did hear the witnesses and had an opportunity to weigh their
evidence in accordance with the usual criteria. With respect to the inferences to be drawn from
the facts, a court of appeal will normally be in as good a position as the Board to draw such
inferences." [Justice MacIntosh in Reiss v. Dartmouth (City) (1979), 36 N.S.R.(2d) 472.]
"The question then is, generally, whether the Board made some palpable and overriding error
which affected its assessment of the facts or, put another way, whether the Board was plainly
wrong in any of its relevant findings of fact made in the course of its reasons for judgment."
[Rogers, J., in Park Projects Ltd. v. Halifax (City) (1982), 50 N.S.R.(2d) 476.]
The expropriation process turns out to be an expensive process for all concerned, and the
expropriating authority realizes the importance of coming up close to a proper figure,
otherwise they will have to pay the price of a contest if the expropriated party gets an
award better than 85% of what the authority had offered in the first place [s. 52(1)].
The expropriation legislation, incidentally, recognizes that an expropriated party may not
only claim the sum offered for his real estate if it is less then what it ought to be for the land
being expropriated, but that his remaining lands abutting might lose value on account of the
expropriation, a claim for "injurious affection" [s. 31(1)(h)]. A claim for "injurious
affection" is statute barred if not commenced within one year [s. 31(1)]. This, presumably,
is within one year of the date the notice of expropriation is served.
The latest case from the Nova Scotia Court of Appeal dealing with various provisions of the
Expropriation Act is L.E. Powell Properties Ltd. v. Nova Scotia (Attorney General),
(1996), 144 N.S.R.(2d) 93.
May 1996
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