Expropriation Law Centre




Peterson Stark Scott


Comments on expropriation in Nova Scotia
Peter Landry

The following commentary was written by Peter Landry, a Nova Scotia barrister, who publishes comments on a wide variety of legal and other issues from a Nova Scotia perspective on his own website: www.blupete.com/Law/index.htm. The references in the article to expropriation legislation are to the Nova Scotia Expropriation Act, R.S.N.S. 1989, c. 156. This article is reproduced here with permission from the author.

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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