City of St. John’s v. Wallace Lynch, et al. 2023 SCC 40302

Supreme Court of Canada Grants Intervenor Status to Ontario Landowners Association 

City of St. John’s   v.   Wallace Lynch, et al.   2023 SCC 40302

Private Landowner Property Rights Improved by Decision of Supreme Court of Canada

On July 5, 2023, the Ontario Landowners Association (“OLA”) was granted leave to intervene in the Supreme Court of Canada case in,

This is our second Intervenor Status granted by the Supreme Court of Canada to speak to a case involving Property Rights.

In this case, the Supreme Court will consider how the government should determine the compensation value it owes to a private property owner once a court determines it has constructively expropriated the owner’s property through regulation.

In St. John’s v. Lynch, the Lynch’s private property was rezoned as watershed by St. John’s because it fell within the Broad Cove River Watershed, which feeds the municipal water supply. Watershed zoning permits discretionary uses relating to agriculture, forestry, and public utilities, but St. John’s took the position that the land must be kept unused in its natural state. The Newfoundland and Labrador Court of Appeal held that refusing to permit any development constituted constructive expropriation and remitted the issue of compensation to the Board of Commissioners of Public Utilities. The Board then asked whether compensation should be assessed based on the uses permitted by the existing watershed zoning, or whether the existing zoning should be ignored, and the value determined as if residential development were allowed. In the decision now under appeal to the Supreme Court of Canada, the Newfoundland and Labrador Court of Appeal held that compensation was to be determined without reference to the existing watershed zoning.

The OLA has been granted leave to make two arguments before the Supreme Court in the appeal. In short, the OLA will argue that:

• In cases such as this one, where the government is found to have constructively expropriated private property through regulation, the government should disregard a regulatory instrument for the purposes of valuation if, without that regulatory instrument, the property owner would not have lost all reasonable uses of the property, or the government would not have acquired the benefit that it did.
• In determining compensation value for constructive expropriation cases, the focus should not be upon whether the public authority intended the impugned regulatory instrument to be part of the “expropriation scheme”. Instead, the assessment of compensation should focus upon the effect of the taking on the landowner and the advantages acquired by the public authority.

The OLA is excited for the opportunity to contribute to the law on this very important topic, particularly because the issues at stake, and the Court’s ultimate decision, are squarely within the OLA’s mission and mandate, and directly affect private landowners across the country.

Ontario Landowners Association