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Friday, January 21, 2011

When does the taking of rights constitute expropriation?

The Supreme Court of Nova Scotia recently decided a case involving a petition by one landowner in Halifax for a private right of way over the land of a neighbour.  The petition was made to the municipality under the Private Way Act (PWA).  The neighbours asked the Court to find that there was no jurisdiction in the municipality to consider the petition and grant the right of way, as to do so would constitute an expropriation (requiring that steps be taken under the applicable expropriations legislation).

While the Court understood that the PWA may have significant consequences for affected landowners, it noted that there are procedural protections and a means of compensation built into the PWA. Moreover, in spite of those potentially significant consequences, the Court did not conclude that the process under the PWA constitutes “expropriation” as contemplated by the Expropriation Act. Therefore, the Court declared that as a matter of law in Nova Scotia, Part 2 of the PWA is operative legislation, and any Municipal Council petitioned for the “obtaining and laying out of a private way or road” may properly consider the petition as per the provisions of the PWA.

Read the decision at: Cron v. Halifax (Regional Municipality).