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Thursday, March 18, 2010

De Facto Expropriation claim being advanced in B.C.

What is "de facto" expropriation?  Justice Cromwell (then of the Nova Scotia Court of Appeal, now a member of the Supreme Court of Canada) wrote in Attorney General of Nova Scotia v. Mariner Real Estate Limited et al. (1999) 177 D.L.R. (4th) 727 (N.S.C.A.) that:
While there is no magic formula for determining (or describing) the point at which regulation ends and taking begins … The question is whether the regulation is of 'sufficient severity to remove virtually all of the rights associated with the property holders interest'.
Normally, expropriation of property may only occur in accordance with expropriation legislation.  However, in some cases government action may effectively (or "de facto") result in a taking of property, which may entitle a property owner to compensation for the taking.  Justice Cromwell suggested that the government action must "remove virtually all of the rights of associated" with the owner's interest in the property.

In Morriss v. British Columbia, the plaintiff Morriss is advancing such a claim.  He alleges that he was deprived of mineral rights associated with a mine when the mine became part of a provincial park.  It remains to be seen whether the claim will be supportable either by the facts or the law.  As the B.C. Court of Appeal recently wrote:
In my opinion, there is no maintainable objection to the rest of the numbered paragraphs. I do not see allegations of wrongdoing by the Province in any of them. They are perhaps not as clear and articulate as they might have been, but I see them as doing nothing more than continuing the chronological narrative of facts that Mr. Morriss hopes will ultimately support his claim that there was a de facto expropriation by the Province of the mineral claims that he staked. Whether the factual allegations are supported by the evidence ultimately presented, and whether a claim of de facto expropriation exists in law, or on a proper application of the law in this case, are matters to be determined. [emphasis added]
 Read the Court of Appeal decision at: Morriss v. British Columbia.