What May Be Expropriated

Prepared by Susan Lloyd, B.A. (Hons.), LL.B. of the Alberta and Manitoba Bars and Elizabeth Portman, B.A., LL.B. of the Alberta Bar

Expropriation — III — What May Be Expropriated

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III.1 – General

§77 A public body with powers of expropriation may not expropriate land belonging to another public corporation with powers of expropriation in the absence of clear language to that effect in the enabling legislation. No such conflict arises when the contest is between a corporate body not possessing powers of expropriation, even if its business constitutes a public use, and a public body which possesses powers of expropriation, since the former did not obtain the land by way of expropriation.

§78 A holder of a right of first refusal over expropriated land has a right to compensation.

§79 A bare licensee has only a personal right extinguishable at will. Such an interest does not give the licensee a compensable estate or interest upon expropriation.

III.2 – Federal

§80 The federal Expropriation Act provides that any interest in land or immovable real right may be expropriated by the Minister of Public Works and Government Services if, in the opinion of the minister, it is required by the Crown for a public work or other public purpose, except certain interests in land defined in the Naskapi and the Cree-Naskapi Commission Act or the Sechelt Indian Band Self-Government Act, in settlement lands as defined in the Yukon Surface Rights Board Act, or interests in Category IA-N land, without the consent of the Governor in Council.

§81 Without limiting the generality of this, in territories and provinces other than in Quebec, an interest in land may include: an interest limited as to time or by condition or otherwise; an easement, profit or servitude; any right to, over or in respect of land that might be conferred by the owner of the land, whether or not that right, if conferred by the owner, could be assessed against a subsequent owner of the land; any restriction on the use of land that might be assumed by covenant or other agreement, whether or not the restriction, if assumed by the owner of the land, could be asserted against a subsequent owner; and the exclusive possession of the land for a limited time, or for a definite or indefinite period, subject to any conditions or limitations specified in the notice.

§82 In Quebec, rights that may be expropriated include any immovable real right.

§83 "Land" includes mines, buildings, structures, other things in the nature of fixtures and objects that are immovable within the meaning of Quebec civil law and also includes minerals whether precious or base, on, above or below the surface, but excludes minerals above the surface in Quebec.

§84 For the purposes of any expropriation under the federal Act, an owner of an interest in land is a person who has a right, estate or interest in any land in Canada elsewhere than in Quebec, and a holder of a right is a person who has any land in Quebec, including a lessee of the land. Where the expropriated property is encumbered by an outstanding lease, both the landlord's reversionary interest and the tenant's leasehold interest are expropriated and compensable. A tenant does not include a licensee or a tenant at will.

§85 It is contemplated by the federal Act that provincial lands may be expropriated by the Crown upon notice to the appropriate provincial Attorney General. A federal company may expropriate provincial lands when the public works to be constructed are for the general advantage of Canada.

§86 An expropriating authority other than the Minister of Public Works and Government Services pursuant to the federal Expropriation Act may expropriate only that which it is statutorily empowered to expropriate and which is necessary for its work or undertaking.

§87 For example, a company as defined by the National Energy Board Act may acquire lands for the purpose of constructing, maintaining, operating and abandoning a pipeline, or maintaining an abandoned pipeline in the absence of consent from the owner. "Lands" include real property and any interests and rights in, to, on, under, over or in respect of real property or lands. The National Energy Board may issue orders granting immediate entry to a company, upon terms and conditions which it considers proper. The order granting immediate right of entry is deemed to vest in the company the right, title and interest in the lands in respect of which the order is granted as specified in the order.

III.3 – Alberta

§88 In Alberta, when an authorizing Act permits an expropriation of land, the expropriating authority may acquire any required estate in the land, and may acquire any lesser interest by way of profit, easement, right, privilege or benefit in, over or derived from the land, unless the authorizing Act provides otherwise. An expropriating authority in Alberta is not entitled to mines and minerals in any land vested in the authority unless the authorizing Act expressly authorizes the expropriation of mines and minerals. In Alberta, an interest in land may include easements and rights-of-way.

§89 "Owner" means: a person registered in the land titles office as the owner of an estate in fee simple; a person who is shown by the records of the land titles office as having a particular estate or interest in or on land; any other person who is in possession or occupation of the land; any other person who is known by the expropriating authority to have an interest in the land; or, in the case of Crown land, a person shown on the records of the department administering the land as having an estate or interest in the land. The Expropriation Act defines "owner" in general terms so as to include a tenant, and provides for compensation for expropriation of a leasehold interest in land.

III.4 – British Columbia

§90 In British Columbia, an expropriating authority may expropriate land under the provisions of an enabling enactment without the consent of the owner of the land. "Owner" is defined in relation to land, and means: a person having an estate, interest, right or title in or to the land, including a person who holds a subsisting judgment or builder's lien; a committee appointed under the Patients Property Act; an attorney under the Power of Attorney Act; and a guardian, executor, administrator or trustee in whom the land is vested; or a person who is in legal possession or occupation of the land, other than a person who leases residential premises under an agreement having a term of less than one year.

§91 In British Columbia, expropriating authorities established pursuant to provincial enactments may expropriate what they are specifically empowered to expropriate in the various statutes.

§92 The minister responsible for the administration of the Park Act may expropriate the rights of the license under a coal licence or of a lessee under a coal lease. Compensation is payable in an amount equal to the value of the right expropriated, to be determined under the regulations. If the parties do not agree on the amount of compensation payable, the minister, licensee or lessee may require the dispute to be settled by a single arbitrator who has the prescribed qualifications and is to be appointed by the minister. The award of the single arbitrator is binding on the parties to the arbitration. Similar provisions apply to the expropriation of other mineral interest for parks purposes.

III.5 – Manitoba

§93 In Manitoba, "land" means land, messuages, tenements, hereditaments, corporeal and incorporeal, of every kind and description, whatever the estate or interest therein, and whether legal or equitable, together with all paths, passages, ways, watercourses, liberties, privileges and easements appertaining thereto, and all trees and timber thereon, and all mines and minerals and quarries, unless specifically excepted, and includes an interest in land.

§94 "Owner" includes the registered owner of the land, any person who has any estate or interest in it or any lien, charge, mortgage or encumbrance on it, any person in actual occupation of it, the owner's heirs, executors, administrators and successors at the time when ownership is material, and a person who was an owner immediately prior to the expropriation.

§95 In Manitoba, lands owned by the Crown or a Crown agency may not be expropriated.

§96 Certain Manitoba statutes state that land may be expropriated by the empowered authority, and define "land" for the purposes of the statute. For example, pursuant to the Land Acquisition Act, "land" includes buildings, improvements and fixtures and an interest in land. An "interest in land" means any estate in land less than an estate in fee simple, and any interest, right, easement and right-of-way in, to or over land, other than the interest of the owner of an estate in fee simple. Pursuant to the Manitoba Hydro Act, "land" means real property of any nature or kind, and includes tenements, hereditaments and appurtenances, leaseholds, and any estate, term, easement, right or interest in, to, over, under or affecting land, including rights-of-way, and waters, water rights, water powers and water privileges.

III.6 – Ontario

§97 In Ontario, "land" includes any estate, term, easement, right or interest in, to, over or affecting land. An "owner" includes a mortgagee, tenant or execution creditor, a person entitled to a limited estate or interest in land, a guardian of property, and a guardian, executor, administrator or trustee in whom land is vested.

III.7 – Saskatchewan

§98 In Saskatchewan, an expropriating authority may acquire land by expropriation. "Land" includes any estate, term, easement, right or interest in, to, over or affecting land. Title to land for a limited time or a limited estate may vest in an expropriating authority. The Act defines "owner" in general terms so as to include lease-hold interests, as a person who has an estate, term, easement, right or interest in, to, over or affecting land.

§99 The Act does not call the interest of a mortgagee or encumbrancer an "interest in land", but provides that any claim to or charge or encumbrance upon land is deemed to be converted into a claim for compensation.

§100 Pursuant to the Expropriation Act, a person authorized pursuant to the Water Power Act may take and use any land by expropriation for the purpose of carrying out an undertaking, and an area authority authorized pursuant to the Conservation and Development Act may take land required for the works of the area authority. "Land" includes "real property, messuages, lands, easements and hereditaments of any tenure, and any easement, servitude, right, privilege or interest in, to, upon, under, over or in respect of the same". Encumbrances upon the land are not stated to be an interest in land, but are convertible to a claim for compensation.

§101 A holder of a licence under the Pipelines Act, 1998, may, without the consent of the owner or any interested person, expropriate any interest in land, including an easement, that is required for the purpose of constructing or operating the pipeline authorized by the licence. "Easement" means an easement within the meaning of the Public Utilities Easements Act, and that Act applies with any necessary modification to an easement expropriated under this provision. The Expropriation Procedure Act applies to the expropriation, and a licence holder who expropriates an interest in land is an expropriating authority within the meaning of that Act.

§102 A licence holder who expropriates an interest in land under the Pipelines Act, 1998, is not entitled to the mines and minerals in or under land that is expropriated, except the portions that it is necessary to dig, carry away or use in the construction of the pipeline.

§103 A municipal council may acquire land without the consent of the owner, and "land" includes a right or interest in land and an easement over it. "Owner" means a person who has any right, title, estate or interest in land. The leasehold interest of a lessee may be expropriated.

§104 The Saskatchewan Power Corporation may acquire, without the consent of the owner, upon receiving authorization from the Lieutenant Governor, any land, buildings, plants, machinery, apparatus or equipment that, in the opinion of the Lieutenant Governor, are necessary for the purposes of the corporation. Title in the mines and minerals under any land expropriated does not pass to the corporation under any vesting order.

§105 An "easement" pursuant to the Power Corporation Act means an easement for a right-of-way over land, consisting of the right to use the land to construct and place on it power lines or pipelines, and the right of entry onto the land for those purposes. For the purposes of constructing, maintaining and operating power lines and pipelines, the corporation may enter upon, take possession of, expropriate and use any lands or rights in respect of lands as it deems necessary. This includes or easements on lands. The Saskatchewan Telecommunications Corporation may expropriate the same interests in land as the Saskatchewan Power Corporation.