With Great Power Comes Great Responsibility
By Tamara Korassa
Reynolds Mirth Richards Farmer LLP
AMSC Casual Legal Service Provider
In Edmonton (City) v Business Care Corp, 2019 ABQB 724, a recent decision of the ABQB, the City of Edmonton (“City”) was unsuccessful in obtaining a declaration from the Court that would have resulted in certain unregistered subtenants not being entitled to compensation under the Expropriation Act (the “EA”).
The City brought an application pursuant to s. 69 of the EA which permits the expropriating authority, when it is in doubt as to the persons who have an interest in land, to apply to the Court for a determination respecting the state of title to the Land.
The City argued that when determining ownership of land, the provisions of the EA should be interpreted consistently with the provisions of the Land Titles Act (the “LTA”) because the two acts deal with the same subject matter – a legal concept referred to as in pari materia. The City’s argument was that the interpretation of “any estate or interest in land” when used in the EA should be interpreted in the same manner such phrase is treated under the LTA.
Ignoring the question of whether the LTA and EA were in fact in pari materia for a moment, the Court found the legislature could not have intended that the expropriating authority would be able to use their expropriation power to defeat known but unregistered interests by allowing the expropriating authority to rely on title to the land to identify who an owner is for the purpose of compensation. Section 1(k) of the EA defines ‘owner’ to include “any other person who is in possession or occupation of the land” or “any other person who is known by the expropriating authority to have an interest in land”.
The Court determined the two Acts are not in pari materia or of the same subject matter because the purposes of the two Acts are different. Namely the purpose of the Land Titles Act is to “give certainty of title and interest” and the purpose of the Expropriation Act is to “compensate ‘owners’, as defined, when their interests are taken without their consent” (para 13). The Court recognized the practical reasons that would lead the City to seek such an interpretation but was not willing to limit the plain meaning of section 1(k) of the EA for the convenience of the expropriating authority.
The decision is consistent with principle that compensation provisions in expropriation legislation exist to provide fair compensation and minimize the loss and inconvenience to those with an interest in land where the government exercises its extraordinary power to take private interests for a public purpose (Dell Holdings Ltd. v. Toronto Area Transit Operating Authority (1997), 1997 CanLII 400 (SCC), 142, D.L.R. (4th) 206).
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