Supreme Court of Canada Grants Intervenor Status to Ontario Landowners Association

Annapolis Group Inc. v. Halifax Regional Municipality, 2022 SCC 36 
Private Landowner Property Rights Improved
by Decision of Supreme Court of Canada 

On October 21, 2022, the Supreme Court of Canada released its decision in Annapolis Group Inc. v. Halifax Regional Municipality, 2022 SCC 36. The Ontario Landowners Association was granted leave to intervene in the appeal and made key submissions before the Supreme Court regarding the test that ought to be applied in cases involving claims of de facto expropriation – a legal doctrine designed to protect private property owners’ rights in cases where the government has made a regulatory decision infringing on their property rights. The decision in Annapolis has important implications for private landowners across the country as the Supreme Court has relaxed the test for establishing de facto expropriation and has made clear that the intention of the government authority in question is relevant to the analysis.

The appeal in Annapolis involved questions about the legal test private landowners are required to establish when making a claim of de facto expropriation against the government. In the Annapolis case, the private landowner claiming de facto expropriation was a land developer, and the government authority was a municipality that wanted to acquire the developer’s lands for a public park. However, the municipality deliberately avoided zoning the lands as parkland (which would have required it to purchase the lands under municipal legislation), and instead passed a resolution that had the effect of prohibiting the developer from engaging in any further development of its land. In the decision under appeal before the Supreme Court, the Nova Scotia Court of Appeal held there was no de facto expropriation despite clear motive on behalf of the government to avoid its obligation to pay, on the basis that the government had not actually acquired title to the lands in question.

On appeal, the OLA submitted that: (1) government motive ought to play a role in de facto expropriation cases; and (2) the Supreme Court should abandon the requirement in prior jurisprudence that the government must acquire a proprietary interest in the property in order for there to be a de facto expropriation.

Consistent with the submissions of the OLA, the Supreme Court of Canada granted Annapolis’ appeal and reversed the Nova Scotia Court of Appeal’s decision. The Supreme Court of Canada held that:

  1. While the government authority’s intention is not an element of the test for de facto expropriation, intention is relevant to the inquiry. The objectives pursued by the government may very well support a finding that the landowner has lost reasonable use of their land.
  2. An actual acquisition of the private landowners’ property rights is not necessary to establish de facto expropriation; rather, if the government authority has obtained an advantage in respect of the lands that is sufficient to ground a claim.

The Supreme Court’s decision in Annapolis will make it easier for private landowners to establish that the test for de facto expropriation is made out in cases where their private property rights have been impacted by state action. The OLA is proud to have been able to contribute to the development of the law in Canada on this important topic affecting private landowners in Ontario and across the country.

Ontario Landowners Association