Canadian Lawyer

June 2020

The most widely read magazine for Canadian lawyers

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Page 34 of 51 33 OTTAWA INVESTING IN INFRASTRUCTURE Through its Investing in Canada plan, the federal government pledged an investment of more than $180 billion over 12 years in five main infrastructure priorities: Public transit Green initiatives Social projects Trade and transportation Rural and northern communities' infrastructure infrastructure development, Peterson Stark Scott expropriation lawyer Bruce Melville observes that the expropriation process can be quite different from province to province. Jurisdictions with newer expropriation legis- lation, he says, are more generous toward property owners than those with older laws. Looking at the history of expropriation, he sees an evolution in which more deference is paid to property owners. "If we go back in time before any of the modern codes, most expropriation legisla- tion didn't have any advance notice require- ment to property owners," he says, pointing to Canada National Railway's old policy of filing and serving the actual instrument that trans- ferred title, before notifying the owner on the theory that if the owner had advance notice they might somehow change their affairs to improve their position when expropriation occurred. "But that approach I think is mostly just historical and may not happen anymore." Now, advanced written notice of the inten- tion to expropriate is a universal requirement. That typically allows for a hearing to address the justification for the proposed expropria- tion. "Advance notice is one of the hallmarks of the modern expropriation codes," along with a requirement that the expropriation authority make an offer or advance payment before beginning the acquisition phase, he says. "The idea being that the property owner should not be out of pocket and also while deprived of title pending final settlement on the compensation claim." In Melville's opinion, the most significant issue in B.C. is the inability of an owner to be fully reimbursed for professional costs, such as legal assistance and appraisals to respond to the intent to expropriate, whereas in other jurisdictions, such as Alberta, the landowner is entitled to reimbursement for all costs reasonably incurred. "Some are much more generous to owners than others. If you go back to the provinces that don't have modern codes, the owners' right to obtain reimbursement for profes- sional costs is very limited, perhaps non- existent except perhaps on the basis that would be applied in ordinary litigation. "In British Columbia, there's a tariff of costs that's applied, and that's not particu- larly generous by comparison to, say, Alberta. Ontario has a cost-recovery regime that is much closer to Alberta than British Columbia." Doherty observes that Nova Scotia has "It's very useful for a property owner to know as early . . . as possible whether the province or some governmental authority is proposing to take their land." John Doherty, Gowling WLG (Canada) LLP

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