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Expropriation - Constructive. Entes Industrial Plants Construction & Erection Contracting Co. Inc. v. Centerra Gold Inc.
In Entes Industrial Plants Construction & Erection Contracting Co. Inc. v. Centerra Gold Inc. (Ont CA, 2023) the Court of Appeal considered the rare issue of government constructive 'appropriation' [also 'expropriation'] when determining which entity was garnishable by a creditor:[13] The appellant argues that the application judge failed to address the following criteria to determine de facto governmental appropriation, as set out in Canadian Pacific Railway Co. v. Vancouver (City), 2006 SCC 5, [2006] 1 S.C.R. 227, and recently confirmed in Annapolis Group Inc. v. Halifax Regional Municipality, 2022 SCC 36, 33 M.P.L.R. (6th) 1, at para. 4:... [A] constructive taking occurs where: (1) a beneficial interest — understood as an advantage — in respect of private property accrues to the state, which may arise where the use of such property is regulated in a manner that permits its enjoyment as a public resource; and (2) the impugned regulatory measure removes all reasonable uses of the private property at issue. . Annapolis Group Inc. v. Halifax Regional Municipality
In Annapolis Group Inc. v. Halifax Regional Municipality (SCC, 2022) the Supreme Court of Canada - in the context of a developer's appeal of a summary judgment dismissal - reviews the law of 'constructive' or common law expropriation (aka 'takings'), that is expropriation outside of an express statutory scheme for that purpose (ie. no Expropriation Act) and without a formal taking of real estate title. In these quotes the court considers the test for when such constructive expropriation occurs, which - when satisfied - may give rise to a common law right of compensation [paras 17-57].
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