Malcolm Lavoie: Supreme Court docket resolution underscores significance of property rights

Malcolm Lavoie: Supreme Court docket resolution underscores significance of property rights

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One of many distinctive options of Canada’s Constitution of Rights is that it doesn’t comprise a clause defending property rights. The Constitution’s lack of protections for property rights is uncommon, setting it aside from nearly all comparable payments of rights around the globe. It could be tempting to conclude from the absence of property rights within the Constitution that Canadians don’t take pleasure in authorized protections from authorities measures that take away property. Nonetheless, that view could be mistaken, because the current Supreme Court docket of Canada resolution in Annapolis v Halifax serves to underscore.

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The Annapolis case concerned a developer that acquired lands within the Halifax space starting within the Nineteen Fifties. In 2006, Halifax adopted a plan that designated the lands as a part of a future park. Nonetheless, reasonably than buying or expropriating the lands with compensation, town merely refused the proprietor’s requests to proceed with any type of growth. In impact, town acquired a park without cost. There’s even proof that town put up path maps that included the personal lands as a part of the municipal park system.

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The developer, Annapolis, initiated a declare in opposition to town arguing that town’s actions amounted to a constructive taking, or de facto expropriation, of its property rights within the land. Annapolis argued that regardless that town didn’t really take away title via a proper expropriation, the impact was the identical, that means town ought to need to pay.

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This declare was rejected by the Nova Scotia Court docket of Attraction. The case was then appealed to the Supreme Court docket of Canada (the place, in full disclosure, I acted as counsel for the intervener Canadian Structure Basis). The Supreme Court docket’s resolution within the case was launched on Friday, and it’s the Court docket’s most essential assertion on property rights in many years.

Writing for a slim, 5-4 majority, Justices Suzanne Côté and Russell Brown conclude that Annapolis’s declare for compensation have to be allowed to proceed to trial. Extra importantly, their resolution units out an method to constructive takings that gives significant safety for property homeowners in opposition to authorities rules that quantity to a taking of property.

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Earlier than the Annapolis resolution, one of many principal obstacles to a profitable constructive takings declare was the requirement that the federal government needed to have acquired a “useful curiosity” referring to the property. Some took this to imply that compensation could be paid solely the place the federal government really acquired a property proper, thus ruling out many varieties of claims, together with the one introduced by Annapolis. Nonetheless, the Annapolis majority resolution clarifies that the federal government want solely obtain some form of “benefit” in an effort to fulfill this requirement.

The result’s that property homeowners can now convey claims for compensation most often the place a authorities measure takes away all cheap makes use of of the property, so long as the federal government receives some form of broadly outlined benefit. This is a vital type of safety. Usually, governments wouldn’t have the facility to really take title to property with out paying compensation (with an exception in instances the place the legislature has clearly licensed that consequence). The Annapolis resolution prevents governments from doing not directly what they can not do instantly — considerably deprive an proprietor of her rights with out compensation.

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Most authorities rules is not going to rise to the extent required for compensation below the Annapolis resolution. Furthermore, because the proper to compensation arises below the widespread legislation, reasonably than the Structure, the legislature finally has the final phrase. Laws can override the proper to compensation by clearly stating that no compensation is payable.

How helpful is a proper that may be overridden by clearly worded laws? Probably fairly helpful, each as an announcement of the values of the authorized system and in sensible phrases. Usually the relevant laws is silent on compensation, that means the widespread legislation prevails. Furthermore, by requiring the legislature to talk clearly in an effort to infringe property rights, courts “promote second thought and public debate,” as Gérard La Forest as soon as put it.

The safety of elementary rights in Canada didn’t start with the enactment of the Constitution in 1982. Earlier than the Constitution, Canadians had been protected by an historic widespread legislation rights custom — a practice that included property rights. As the choice in Annapolis emphasizes, these widespread legislation rights proceed in drive, even when they don’t seem to be a part of the Constitution.

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Malcolm Lavoie is an affiliate professor with the College of Alberta College of Regulation and affiliate counsel with Miller Thomson LLP.

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