Law:Expropriation Act

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R.s.c., 1985, c. E-21

An Act respecting the expropriation of land


Contents

Short Title

Short title

1. This Act may be cited as the Expropriation Act.

R.S., c. 16(1st Supp.), s. 1.


Interpretation

Definitions

2. In this Act,

“Court”

« tribunal »

“Court” means the Federal Court;

“Crown”

« Couronne »

“Crown” means Her Majesty in right of Canada;

“expropriated”

« exproprié »

“expropriated” means taken by the Crown under Part I;

“expropriated interest”

« droit exproprié »

“expropriated interest” means any right, estate or interest that has been lost, in whole or in part, by the registration of a notice of confirmation under Part I;

“interest in land”

« droit réel immobilier »

“interest in land”, in relation to land in the Province of Quebec, includes the interest of a lessee therein;

“land”

« bien-fonds »

“land” includes buildings, structures and other things in the nature of fixtures and mines and minerals whether precious or base, on, above or below the surface;

“Minister”

« ministre »

“Minister”

(a) in relation to the provisions of this Act other than Part II, means the Minister of Public Works and Government Services or, for such periods and in relation to such matters to which the powers, duties and functions of the Minister under this Act extend as may be specified in any instrument of delegation signed by the Minister of Public Works and Government Services and published in the Canada Gazette, such other Minister described in paragraph (b) as is named in the instrument, and

(b) in relation to Part II, means a Minister presiding over a department named in Schedule I to the Financial Administration Act;

“notice of confirmation”

« avis de confirmation »

“notice of confirmation” means a notice of confirmation described in section 14;

“notice of intention”

« avis d’intntion »

“notice of intention” means a notice of intention described in section 5;

“owner”

« titulaire »

“owner”, in relation to any expropriated interest, includes the owner of a leasehold interest;

“register”

« enregistrer »

“register” includes file or deposit;

“registrar”

« registrateur »

“registrar” means the registrar or master of deeds or land titles or other officer with whom the title to land is registered or recorded.

R.S., 1985, c. E-21, s. 2; 1996, c. 16, s. 60.

Sending of notices and other documents

3. (1) For the purposes of this Act, where any notice or other document or a copy thereof is required or authorized to be sent to a person other than the Minister or the Attorney General of Canada,

(a) the document or copy shall be sent to that person by being mailed by registered mail addressed to him at his latest known address or, if his address is unknown, by being published in at least one issue of a publication, if any, in general circulation within the area in which the land to which the document relates is situated; and

(b) the document or copy shall be deemed to have been sent to that person at the time when it was mailed or first published in accordance with paragraph (a).

Idem

(2) Where any objection or other document is to be served on the Minister, it shall be served on him by being left at, or by being sent by registered mail to, the office of the Minister, but if any such document is sent by registered mail to the office of the Minister service thereof shall be deemed not to be effected until it has been received at that office.

R.S., c. 16(1st Supp.), s. 2.


Part I. Expropriation

Acquisition and Abandonment of Land

Authority to expropriate

4. (1) Any interest in land, including any of the interests mentioned in section 7, that, in the opinion of the Minister, is required by the Crown for a public work or other public purpose may be expropriated by the Crown in accordance with the provisions of this Part.

Exception

(2) No interest in land that is Category IA land or Category IA-N land, as defined in the Cree-Naskapi (of Quebec) Act, chapter 18 of the Statutes of Canada, 1984, may be expropriated under this Part without the consent of the Governor in Council.

Exception

(3) No interest in lands that are “Sechelt lands”, as defined in the Sechelt Indian Band Self-Government Act, chapter 27 of the Statutes of Canada, 1986, may be expropriated under this Part without the consent of the Governor in Council.

Exception

(4) No interest in settlement land as defined in section 2 of the Yukon Surface Rights Board Act may be expropriated under this Part without the consent of the Governor in Council.

Exception

(5) No interest in Tetlit Gwich’in Yukon land may be expropriated under this Part without the consent of the Governor in Council.

Notice of intention

(6) Where an interest in land referred to in subsection (4) or (5) is to be expropriated, notice of intention to obtain the consent of the Governor in Council shall be given to the Yukon first nation or Gwich’in Tribal Council, as the case may be, on completion of any public hearing and submission of a report to the Minister required by section 10 or, if no hearing is held, on the expiration of the period of thirty days referred to in section 9.

Definition of “Tetlit Gwich’in Yukon land”

(7) In this section, “Tetlit Gwich’in Yukon land” means land as described in Annex B, as amended from time to time, to Appendix C of the Comprehensive Land Claim Agreement between Her Majesty the Queen in right of Canada and the Gwich’in, as represented by the Gwich’in Tribal Council, that was approved, given effect and declared valid by the Gwich’in Land Claim Settlement Act.

R.S., 1985, c. E-21, s. 4; R.S., 1985, c. 20 (2nd Supp.), s. 2; 1994, c. 43, s. 84.

Request by railway company to expropriate

4.1 (1) Where a railway company, as defined in section 87 of the Canada Transportation Act, requires an interest in land for the purposes of its railway and has unsuccessfully attempted to purchase the interest in land, the railway company may request the Minister of Transport to have the Minister have the interest in land expropriated by the Crown in accordance with this Part.

Power of Minister

(2) The Minister shall have the interest in land expropriated by the Crown in accordance with this Part where

(a) the Minister of Transport is of the opinion that the interest in land is required by the railway company for its railway and recommends to the Governor in Council that it be expropriated in accordance with this Part; and

(b) the Governor in Council consents to the expropriation of the interest in land.

Deemed opinion

(3) If the Minister of Transport is of the opinion that the interest in land is required by the railway company for its railway, the Minister is deemed to be of the opinion that the interest in land is required by the Crown for a public work or other public purpose.

Charges for services

(4) The appropriate minister in relation to Part I of this Act may make regulations prescribing fees or charges to be paid by a railway company in respect of an expropriation referred to in subsection (2), and rates of interest payable in respect of those fees and charges.

Debt due to Her Majesty

(5) The fees or charges are a debt due to Her Majesty in right of Canada by the railway company, and shall bear interest at the prescribed rate from the date they are payable.

Security

(6) The Minister may require the company to provide security, in an amount determined by the Minister and subject to any terms and conditions that the Minister may specify, for the payment of any fees or charges that are or may become payable under this section.

Vesting of interest in land

(7) For the purpose of this section, the reference to the Crown in section 15 shall be construed as a reference to the railway company that made a request under subsection (1).

Restriction on alienation

(8) Where an interest in land that was vested in the Crown before the expropriation vests in a railway company pursuant to section 15, the railway company may not alienate that interest except to transfer it to the Crown.

1996, c. 10, s. 228.

Notice of intention to expropriate

5. (1) Whenever, in the opinion of the Minister, any interest in land is required by the Crown for a public work or other public purpose, the Minister may request the Attorney General of Canada to register a notice of intention to expropriate the interest, signed by the Minister, setting out

(a) a description of the land;

(b) the nature of the interest intended to be expropriated and whether the interest is intended to be subject to any existing interest in the land;

(c) an indication of the public work or other public purpose for which the interest is required; and

(d) a statement that it is intended that the interest be expropriated by the Crown.

Registration of notice

(2) On receiving from the Minister a request to register a notice of intention described in this section, the Attorney General of Canada shall cause the notice, together with a plan of the land to which the notice relates, to be registered in the office of the registrar for the county, district or registration division in which the land is situated, and, after causing such investigations and searches to be made respecting the state of the title to the land as appear to him to be necessary or desirable, the Attorney General of Canada shall furnish the Minister with a report setting out the names and latest known addresses, if any, of the persons appearing to have any right, estate or interest in the land, so far as he has been able to ascertain them.

Further indication of public purpose

(3) Where, in the opinion of the Minister, the interest to which a notice of intention described in this section relates is required by the Crown for a purpose related to the safety or security of Canada or a state allied or associated with Canada and it would not be in the public interest further to indicate that purpose, a statement in the notice to the effect that the interest is required by the Crown for such a purpose is sufficient compliance with paragraph (1)(c) without further indication thereof.

Idem

(4) Subject to subsection (3), the Minister shall, for the purposes of sections 9 and 10 and to the extent that it appears to him to be practicable and in the public interest to do so, make available to any person on request any additional information that is available to the Minister with respect to the public work or other public purpose for which the interest to which a notice registered under this section relates is required by the Crown.

R.S., c. 16(1st Supp.), s. 4.

Error, etc., in notice or plan

6. (1) Where a notice or plan registered under section 5 contains any omission, mis-statement or erroneous description, a corrected notice or plan may be registered, which shall be deemed to relate back to the day the original notice or plan was registered.

Validity of notice

(2) A notice registered under section 5 is not invalid by reason only that it does not set out the nature of the interest intended to be expropriated and, in that case, the interest intended to be expropriated includes all the interests in the land to which the notice relates.

Idem

(3) A notice registered under section 5 is not invalid by reason only that it does not set out whether the interest intended to be expropriated is intended to be subject to an existing interest in the land to which the notice relates, and, where it does not do so, the interest intended to be expropriated is not subject to that existing interest.

Provincial lands

(4) Where it appears to the Attorney General of Canada that any land or interest in land to which a notice registered under section 5 relates belongs to Her Majesty in right of any province, he shall thereupon cause the attorney general of the province to be notified of the registration and of the particulars thereof.

R.S., c. 16(1st Supp.), s. 4.

Nature of interests that may be set out in notice

7. A notice of intention may set out, as the nature of the interest intended to be expropriated, any estate or interest in land, including, without restricting the generality of the foregoing,

(a) an interest limited as to time or by condition or otherwise;

(b) an easement, profit or servitude;

(c) any right to, over or in respect of land that might be conferred by the owner of the land, whether or not that right, if conferred by the owner, could be asserted against a subsequent owner of the land;

(d) any restriction on the use of land that might be assumed by covenant or other agreement, whether or not that restriction, if assumed by the owner of the land, could be asserted against a subsequent owner thereof; and

(e) the exclusive possession of land for a limited time or for a definite or indefinite period, subject to such conditions or limitations, if any, as may be specified in the notice.

R.S., c. 16(1st Supp.), s. 5.

Sending of copies and publication of notice

8. (1) Where a notice of intention to expropriate an interest in land has been registered, the Minister shall cause a copy of the notice

(a) to be published in at least one issue of a publication, if any, in general circulation within the area in which the land is situated, within thirty days after the registration of the notice, and

(b) to be sent to each of the persons whose names are set out in the report of the Attorney General of Canada referred to in subsection 5(2), as soon as practicable after the registration of the notice,

and forthwith after causing a copy thereof to be sent by registered mail to each of the persons referred to in paragraph (b), shall cause the notice to be published in the Canada Gazette.

When notice deemed given

(2) A notice of intention shall be deemed to be given on the day on which it is published in the Canada Gazette under subsection (1), and where any notice so published contains an omission, mis-statement or erroneous description, a corrected notice may be published in the Canada Gazette, which shall be deemed to relate back to the day the original notice was published therein.

Statement re right to object

(3) There shall be included in any notice or copy thereof published or sent as described in subsection (1) a statement of the provisions of section 9 as that section applies to the intended expropriation of the interest to which the notice relates.

R.S., c. 16(1st Supp.), s. 6.

Objections

9. Any person who objects to the intended expropriation of an interest in land to which a notice of intention relates may, within thirty days after the day the notice is given, serve on the Minister an objection in writing stating the name and address of that person and indicating the nature of the objection, the grounds on which the objection is based and the nature of the interest of that person in the matter of the intended expropriation.

R.S., c. 16(1st Supp.), s. 7.

Public hearing

10. (1) Forthwith after the expiration of the period of thirty days referred to in section 9, the Minister shall, if the Minister has been served with an objection under that section, order that a public hearing be conducted with respect to the objection and any other objection to the intended expropriation that has been or may be served on the Minister.

Appointment of hearing officer

(2) Where the Minister orders that a public hearing be conducted with respect to an objection or objections, the Minister shall immediately request the Attorney General of Canada to appoint a hearing officer to conduct the hearing and the Attorney General of Canada shall thereupon appoint a suitable person, who is not a person employed in the public service as defined in subsection 3(1) of the Public Service Superannuation Act, to be a hearing officer for that purpose.

Remuneration and expenses

(3) A hearing officer appointed under this section shall be paid such remuneration and expenses as may be fixed by the Attorney General of Canada with the approval of the Treasury Board.

Duties of hearing officer

(4) A hearing officer appointed under this section shall

(a) as soon as possible after the appointment of the hearing officer and in any case not later than seven days after the date thereof, fix a suitable time and place for the public hearing and cause notice of the time and place to be given by publishing it in at least one issue of a publication, if any, in general circulation within the area in which the land is situated and by sending it to each of the persons whose names are set out in the report of the Attorney General of Canada referred to in subsection 5(2) and each other person who served an objection on the Minister;

(b) at the time and place fixed for the public hearing, provide an opportunity to be heard to each person appearing thereat who served an objection on the Minister or such of those persons as the hearing officer deems necessary in order to report to the Minister on the nature and grounds of the objections;

(c) make such inspection of the land as the hearing officer deems necessary and receive and consider any written representations filed with the hearing officer before or at the hearing by any person who served an objection on the Minister; and

(d) within thirty days after the appointment of the hearing officer, prepare and submit to the Minister a report in writing on the nature and grounds of the objections made.

Idem

(5) A hearing officer is not required to give any notice, hold any hearing or take any other action required by subsection (4) with respect to any objection served on the Minister under section 9 and may at any time disregard any such objection if it appears to the hearing officer that the objection is frivolous or vexatious or is not made in good faith.

Right to counsel

(6) Any person who may be heard at a public hearing under this section may be represented by counsel at the hearing.

Conduct of hearing

(7) A public hearing under this section shall, subject to this section, be conducted in such manner as may be determined by the hearing officer.

Extension of time for report

(8) At the request of any hearing officer, the Attorney General of Canada may extend, for a period not exceeding thirty days, the time limited by this section for preparing and submitting to the Minister a report.

class="MarginalNotCosts of asserting objections

(9) A hearing officer shall, in any report submitted by him to the Minister under this section, fix such amount, if any, as the hearing officer deems reasonable, not exceeding such maximum amount as may be authorized by any tariff of costs prescribed by the Governor in Council for the purpose of this section, in respect of the costs of any person who served an objection on the Minister that were incurred by that person in asserting the objection, and on the certificate of the Minister the Minister of Finance shall, out of the Consolidated Revenue Fund, cause to be paid to that person the amount so certified in respect of those costs.

Failure to conduct or report hearing

(10) Where, for any reason, a hearing officer appointed to conduct a public hearing under this section fails to do so or to prepare and submit to the Minister a report as and when required by this section, the Minister shall so notify the Attorney General of Canada who shall immediately appoint another hearing officer for that purpose.

Order where possession by Crown urgently required

(11) Where, before a notice of intention is registered, the Governor in Council is of the opinion that the physical possession or use by the Crown of the land to the extent of the interest intended to be expropriated is, by reason of special circumstances, urgently required and that to order that a public hearing be conducted with respect thereto would occasion a delay prejudicial to the public interest, the Governor in Council may direct that no order be made by the Minister under subsection (1) with respect to the intended expropriation and, in which case, a statement to that effect shall be included in the notice of intention.

Exception

(12) Subsection (11) does not apply in respect of land described in subsection 4(4) or (5), but the Yukon first nation concerned or the Gwich’in Tribal Council, as the case may be, may agree to waive the requirement for a public hearing and, if it does so before a notice of intention is registered, a statement of the waiver shall be included in the notice of intention.

R.S., 1985, c. E-21, s. 10; 1994, c. 43, s. 85; 2003, c. 22, s. 225(E).

Previous VersionConfirmation or abandonment of intention

11. (1) Where a notice of intention has been given, the Minister may

(a) confirm the intention, in the manner provided in section 14,

(i) if no objection is filed with him under section 9 within the period of thirty days referred to in that section,

(ii) if an objection has been filed with him under section 9 within the period of thirty days referred to in that section, after receiving and considering the report of a hearing officer appointed to conduct a public hearing with respect thereto, or

(iii) whether or not an objection has been filed with him under section 9, if a statement to the effect described in subsection 10(11) has been included in the notice of intention; or

(b) abandon the intention.

Idem

(2) Where, on the expiration of one hundred and twenty days after the day the notice was given, the Minister has not confirmed the intention in the manner provided in section 14, the Minister shall be deemed to have abandoned the intention.

Where more limited interest only required

(3) Whenever, at the time of confirming an intention to expropriate an interest in land, the Minister is of the opinion that a more limited interest only is required by the Crown for a public work or other public purpose, the Minister may confirm the intention to expropriate the more limited interest, in which case the Minister shall be deemed to have abandoned the intention to expropriate the remainder of the interest.

R.S., c. 16(1st Supp.), s. 9.

Notice of abandonment of intention

12. (1) Where the Minister has abandoned an intention to expropriate an interest in land otherwise than by confirming an intention to expropriate a more limited interest therein, the Minister shall forthwith cause a notice of abandonment of the intention to be sent

(a) to each of the persons then appearing to have any right, estate or interest in the land, so far as the Attorney General of Canada has been able to ascertain them, and each other person who served an objection on the Minister under section 9; and

(b) to the Attorney General of Canada, who shall thereupon confirm the abandonment by causing the notice to be registered in the office of the registrar where the notice of intention was registered.

Right of owner where abandonment of intention

(2) Where an intention to expropriate an interest or remainder of an interest in land has been abandoned, compensation in accordance with this Part shall be paid by the Crown to the person who was the owner of the interest or remainder at the time when the notice of intention was registered.

R.S., c. 16(1st Supp.), s. 10.

Copy of report and reasons to be sent on request

13. Where the Minister, after receiving and considering a report of a hearing officer appointed to conduct a public hearing with respect to an objection served on the Minister by any person under section 9, has confirmed an intention to expropriate an interest in land, or a more limited interest therein, in the manner provided in section 14, the Minister shall, at the written request of the person who served the objection, furnish that person with a copy of the report of the hearing officer and, where effect was not given to the objection, a statement of the reasons that the Minister had for not giving effect thereto.

R.S., c. 16(1st Supp.), s. 11.

Notice of confirmation of intention

14. (1) The Minister may confirm an intention to expropriate an interest in land to which a notice of intention relates, or a more limited interest therein, by requesting the Attorney General of Canada to register a notice of confirmation, signed by the Minister, setting out,

(a) if the interest expropriated is the same as the interest to which the notice of intention relates, a statement that the intention to expropriate that interest is confirmed; or

(b) if the interest expropriated is a more limited interest than the interest to which the notice of intention relates, a statement that the intention to expropriate the interest to which the notice of intention relates is confirmed except as expressly specified in the statement.

Registration of notice

(2) On receiving from the Minister a request to register a notice of confirmation described in this section, the Attorney General of Canada shall cause the notice to be registered in the office of the registrar where the notice of intention was registered, and if the land to which the notice of confirmation relates is more limited in area than the land described in the notice of intention, shall cause a revised plan of the land to which the notice of confirmation relates to be registered therewith.

R.S., c. 16(1st Supp.), s. 12.

Effect of registration of notice

15. On the registration of a notice of confirmation,

(a) the interest confirmed to be expropriated becomes and is absolutely vested in the Crown; and

(b) any other right, estate or interest is, as against the Crown or any person claiming through or under the Crown, thereby lost to the extent that that right, estate or interest is inconsistent with the interest confirmed to be expropriated.

R.S., c. 16(1st Supp.), s. 13.

Copies to be sent and offer of full compensation to be made

16. (1) Where a notice of confirmation has been registered, the Minister shall,

(a) forthwith after the registration of the notice, cause a copy thereof to be sent to each of the persons then appearing to have any right, estate or interest in the land, so far as the Attorney General of Canada has been able to ascertain them, and each other person who served an objection on the Minister under section 9; and

(b) within ninety days after the registration of the notice, or, if at any time before the expiration of those ninety days an application has been made under section 18, within the later of

(i) ninety days after the registration of the notice, or

(ii) thirty days after the day the application is finally disposed of,

make to each person who is entitled to compensation under this Part, in respect of an expropriated interest to which the notice of confirmation relates, an offer in writing of compensation, in an amount estimated by the Minister to be equal to the compensation to which that person is then entitled under this Part in respect of that interest, not conditional on the provision by that person of any release or releases and without prejudice to the right of that person, if he accepts the offer, to claim additional compensation in respect thereof.

Where delay in offer

(2) Where, in any case, it is not practicable for the Minister to make an offer of compensation under this section in respect of an expropriated interest within the applicable period described in paragraph (1)(b), the Minister shall make such an offer as soon as practicable after the expiration of that period and in any event before any compensation is adjudged by the Court to be payable under this Part in respect thereof, in which case, interest as described in subsection 36(4) is payable in addition to any other interest payable under section 36 to the person entitled to compensation in respect thereof.

Offer to be based on written appraisal

(3) An offer of compensation made to a person under this section in respect of an expropriated interest shall be based on a written appraisal of the value of that interest, and a copy of the appraisal shall be sent to that person at the time of the making of the offer.

Statements to be included in copy of notice and in offer

(4) There shall be included in any copy of a notice of confirmation sent to any person as described in paragraph (1)(a) a statement of the provisions of section 29 as that section applies to him, and there shall be included in any offer in writing sent to any person as described in paragraph (1)(b) a statement to the effect that the offer is not conditional on the provision by him of any release or releases and is made without prejudice to his right, if he accepts the offer, to claim additional compensation in respect of the expropriated interest.

R.S., c. 16(1st Supp.), s. 14.

Where offer accepted

17. Where an offer of compensation has been made to any person under section 16, the full amount thereof shall, forthwith on the acceptance of the offer, be paid to that person.

R.S., c. 16(1st Supp.), s. 15.

Determination respecting title

18. (1) Where the Attorney General of Canada, at any time after the registration of a notice of confirmation, is in doubt as to the persons who had any right, estate or interest in the land to which the notice relates or as to the nature or extent thereof, the Attorney General of Canada may apply to the Court to make a determination respecting the state of the title to the land or any part thereof immediately before the registration of the notice, and to adjudge who had a right, estate or interest in the land at that time, and the nature and extent thereof.

Hearing

(2) An application under this section shall in the first instance be made ex parte and the Court shall fix a time and place for the hearing of the persons concerned and give directions as to

(a) the persons who are to be served with the notice of the hearing, the contents of the notice and the manner of service thereof;

(b) the material and information to be submitted by the Attorney General of Canada or any other persons; and

(c) such other matters as the Court considers necessary.

Adjudication

(3) After the hearing under subsection (2), the Court shall either adjudge for the purposes of this Part what persons had any right, estate or interest in the land to which the notice of confirmation relates immediately before the registration of the notice, and the nature and extent thereof, or direct an issue or issues to be tried for the purpose of enabling the Court to make such an adjudication.

Effect of adjudication

(4) An adjudication made by the Court for the purposes of this Part shall be deemed to be a final judgment of the Court and, subject to variation on appeal, if any, shall finally determine for all purposes of this Part what persons had any right, estate or interest in the land to which the notice of confirmation relates immediately before the registration of the notice, and the nature and extent thereof.

R.S., c. 16(1st Supp.), s. 16.

Right of Crown to physical possession

19. (1) Notwithstanding section 15, the Crown becomes entitled to take physical possession or make use of any land to which a notice of confirmation relates, to the extent of the interest expropriated, only at such of the following times as is applicable, namely,

(a) at the time of the registration of the notice of confirmation, if at that time no other person who was the owner of an interest therein immediately before the registration of the notice of confirmation is in occupation of the land;

(b) at such time, if any, after the registration of the notice of confirmation as physical possession or use of the land to the extent of the interest expropriated is given up to the Crown without any notice under paragraph (c) having been sent to the persons described in that paragraph; or

(c) in any other case, at such time after the registration of the notice of confirmation as

(i) the Minister has sent a notice to each of the persons appearing to have had any right, estate or interest therein at the time of the registration of the notice of confirmation, so far as the Attorney General of Canada has been able to ascertain them, or, where an application has been made under section 18 and has been finally disposed of, to each of the persons adjudged to have had an interest therein immediately before the registration of the notice of confirmation, that physical possession or use is required by the Crown on and after the expiration of such period as is specified in the notice, being not less than ninety days after the sending of the notice to each of those persons, and either that period has expired or physical possession or use has been given up to the Crown before the expiration of that period, and

(ii) the Minister has made an offer under section 16 to each of the persons then entitled to compensation under this Part in respect of an interest therein.

Where possession by Crown urgently required

(2) Where, at any time before or after a notice of confirmation has been registered, the Governor in Council is of the opinion that the physical possession or use by the Crown of the land to which the notice relates to the extent of the interest expropriated or intended to be expropriated is, by reason of special circumstances, urgently required, the Governor in Council may direct

(a) that there be substituted for the ninety days referred to in paragraph (1)(c) such lesser number of days as in his opinion the circumstances require; or

(b) where an application has been made under section 18 but has not been finally disposed of, that physical possession or use may be taken or made by the Crown notwithstanding that no offer has then been made under section 16.

R.S., c. 16(1st Supp.), s. 17.

Intention to abandon expropriation: right of election to accept or reject abandonment

20. (1) Where, at any time before any compensation is paid in respect of an interest expropriated, the Minister is of the opinion that the interest is not or is no longer required by the Crown for a public work or other public purpose, or that a more limited interest only is so required, the Minister may give notice that he intends to abandon the interest or the remainder of the interest, as the case may be, by causing a copy of the notice to be sent to each of the persons mentioned in paragraph 19(1)(c), each of whom may, within thirty days from the day a copy of the notice was sent to him, serve on the Minister a notice in writing that he elects to

(a) accept the abandonment, and have the interest or remainder revest in him to the extent that the abandonment would operate to revest it in him; or

(b) reject the abandonment.

Where election to accept abandonment

(2) If each of the persons to whom a notice is sent under subsection (1) serves a notice on the Minister under that subsection that he elects to accept the abandonment, the Minister may cause a notice of abandonment of the interest expropriated or the remainder of the interest, as the case may be, to be sent to each of those persons and to the Attorney General of Canada, who shall thereupon confirm the abandonment by causing the notice to be registered in the office of the registrar where the notice of confirmation was registered.

R.S., c. 16(1st Supp.), s. 18.

Effect of confirmation of abandonment

21. Where an interest expropriated or a remainder of an interest in land is confirmed to be abandoned, the interest expropriated thereupon revests in the persons from whom it was taken or the persons entitled to claim through or under them, or the land thereupon revests in those persons subject to the more limited interest therein retained by the Crown, as the case may be.

R.S., c. 16(1st Supp.), s. 19.

Duties of registrar

22. Every registrar shall receive and permanently preserve in his office such notices and plans as the Attorney General of Canada causes to be registered under this Part, and shall endorse thereon the day, hour and minute when they were received by him as the time of registration and make such entries in his records as will make their registration of public record.

R.S., c. 16(1st Supp.), s. 20.

Notice conclusive except against Crown

23. Unless questioned by the Crown,

(a) a document purporting to be signed by the Minister shall be deemed to have been so signed;

(b) it shall be deemed that

(i) all of the interests to which a notice of intention relates are,

(ii) a more limited interest only to which a notice of confirmation relates is, or

(iii) an interest stated in a notice of abandonment to be abandoned or the remainder of the interest, as the case may be, is not or is no longer,

in the opinion of the Minister required by the Crown for a public work or other public purpose; and

(c) it shall be deemed that, on being caused to be registered by the Attorney General of Canada in the office of the registrar where a notice of intention to expropriate an interest in land was registered, a document purporting to be a notice of confirmation of the intention to expropriate that interest or a more limited interest only in the land is a notice of confirmation thereof thereupon registered in accordance with this Part.

R.S., c. 16(1st Supp.), s. 21.

Evidence of notice and registration

24. A document purporting to be certified by a registrar to be a true copy of a notice or plan registered under this Part at a time stated in the certificate is, without proof of the official character or signature of the registrar, evidence of the facts stated therein and of the registration of the notice or plan at the time so stated.

R.S., c. 16(1st Supp.), s. 22.


Compensation

Right to compensation

25. (1) Compensation shall be paid by the Crown to each person who, immediately before the registration of a notice of confirmation, was the owner of a right, estate or interest in the land to which the notice relates, to the extent of his expropriated interest, the amount of which compensation shall be equal to the aggregate of

(a) the value of the expropriated interest at the time of its taking, and

(b) the amount of any decrease in value of the remaining property of the owner, determined as provided in section 27.

Time as of which value to be determined

(2) For the purposes of this section and sections 26 and 27, the time of the taking of an expropriated interest is,

(a) where an election has been made under subsection (3) by the owner thereof, the time specified by him in his election; and

(b) in any other case, the time when the notice of confirmation was registered.

Election as to time where notice of confirmation not sent until after ninety days from registration

(3) Where no copy of a notice of confirmation was sent to a person whose name is set out in the report of the Attorney General of Canada referred to in subsection 5(2) or who served an objection on the Minister under section 9 until a time more than ninety days after the registration of the notice, that person may, at any time before any compensation is paid to him in respect of any expropriated interest of which he was the owner immediately before the registration of the notice of confirmation, elect to have the value of the interest determined at either

(a) the time when the notice of confirmation was registered, or

(b) the time when the copy of the notice of confirmation was sent to him,

as specified by him in his election.

R.S., c. 16(1st Supp.), s. 23.

Rules for determining value

26. (1) The rules set out in this section shall be applied in determining the value of an expropriated interest.

Market value defined

(2) Subject to this section, the value of an expropriated interest is the market value thereof, that is to say, the amount that would have been paid for the interest if, at the time of its taking, it had been sold in the open market by a willing seller to a willing buyer.

Where owner required to give up occupation

(3) Where the owner of an expropriated interest was in occupation of any land at the time the notice of confirmation was registered and, as a result of the expropriation, it has been necessary for him to give up occupation of the land, the value of the expropriated interest is the greater of

(a) the market value thereof determined as set out in subsection (2), and

(b) the aggregate of

(i) the market value thereof determined on the basis that the use to which the expropriated interest was being put at the time of its taking was its highest and best use, and

(ii) the costs, expenses and losses arising out of or incidental to the owner’s disturbance, including moving to other premises, but if those costs, expenses and losses cannot practically be estimated or determined, there may be allowed in lieu thereof a percentage, not exceeding fifteen, of the market value determined as set out in subparagraph (i),

plus the value to the owner of any element of special economic advantage to him arising out of or incidental to his occupation of the land, to the extent that no other provision is made by this paragraph for the inclusion thereof in determining the value of the expropriated interest.

Where Crown has taken physical possession of land

(4) In any case where the Crown has taken physical possession or made use of the land referred to in subsection (3) on the expiration of a period of notice to the owner shorter than the ninety days mentioned in paragraph 19(1)(c), there shall be added to the value of the expropriated interest otherwise determined under this section an additional amount equal to ten per cent thereof.

Where specially designed building erected on land

(5) Notwithstanding subsection (3), where any parcel of land to which a notice of confirmation relates had any building or other structure erected thereon that was specially designed for use for the purpose of a school, hospital, municipal institution or religious or charitable institution or for any similar purpose, the use of which building or other structure for that purpose by the owner has been rendered impracticable as a result of the expropriation, the value of the expropriated interest is, if the expropriated interest was and, but for the expropriation, would have continued to be used for that purpose and at the time of its taking there was no general demand or market therefor for that purpose, the greater of

(a) the market value of the expropriated interest determined as set out in subsection (2), and

(b) the aggregate of

(i) the cost of any reasonably alternative interest in land for that purpose, and

(ii) the cost, expenses and losses arising out of or incidental to moving to and re-establishment on other premises, but if those costs, expenses and losses cannot practically be estimated or determined, there may be allowed in lieu thereof a percentage, not exceeding fifteen, of the cost determined under subparagraph (i),

minus the amount by which te owner has improved, or may reasonably be expected to improve, his position through re-establishment on other premises.

Where Crown has taken physical possession of land

(6) In any case where the Crown has taken physical possession or made use of the parcel of land referred to in subsection (5) on the expiration of a period of notice to the owner shorter than the ninety days mentioned in paragraph 19(1)(c), there shall be added to the value of the expropriated interest otherwise determined under this section an additional amount equal to ten per cent thereof.

Additional factors

(7) For the purposes of subparagraphs (3)(b)(ii) and (5)(b)(ii), consideration shall be given to the time and circumstances in which a former owner was allowed to continue in occupation of the land after the Crown became entitled to take physical possession or make use thereof, and to any assistance given by the Minister to enable the former owner to seek and obtain alternative premises.

Land used for residence

(8) Where an expropriated interest was, immediately before the registration of a notice of confirmation, being used by the owner thereof for the purposes of his residence and the value of the interest otherwise determined under this section is less than the minimum amount sufficient to enable the owner, at the earlier of

(a) the time of payment to him of any compensation in respect of the interest, otherwise than pursuant to any offer made to him under section 16, and

(b) the time when the Crown became entitled to take physical possession or make use of the land to the extent of the interest expropriated,

to relocate his residence in or on premises reasonably equivalent to the premises expropriated, there shall be added to the value of the interest otherwise determined under this section the amount by which that minimum amount exceeds that value.

Moving and relocation expenses of owner of leasehold interest

(9) Where an expropriated interest was, immediately before the registration of a notice of confirmation, owned by the owner thereof as a leasehold interest, there shall be substituted for the amount determined under subparagraph (3)(b)(ii) or (5)(b)(ii), or the amount by which the minimum amount referred to in subsection (8) exceeds the value of the interest referred to therein otherwise determined under this section, as the case may be, such part of that amount as is appropriate having regard to

(a) the length of the term of the leasehold interest and the portion of the term remaining at the time at which the determination is relevant;

(b) any right or reasonable prospect of renewal of the term that the owner of the leasehold interest had; and

(c) any investment in the land by the owner of the leasehold interest and the nature of any business carried on by him thereon.

Land subject to security interest

(10) Where an expropriated interest was, immediately before the registration of a notice of confirmation, subject to an interest in land that was held by the owner thereof as security only, in this subsection called a “security interest”,

(a) the value of the expropriated interest is the aggregate of

(i) the value thereof otherwise determined under this section as though it had not been subject to any security interest, and

(ii) the amount of any loss or anticipated loss to the owner of the expropriated interest resulting from a difference in rates of interest during the remainder of the period for which any principal amount payablender the terms of the security was advanced, that difference to be calculated on the basis of an assumed rate of interest not in excess of the prevailing rate of interest for an equivalent security, to the extent that no other provision is made by this section for the inclusion of an amount in respect of the loss or anticipated loss in determining the value of the expropriated interest,

less the value of each security interest to which the expropriated interest was subject, determined as provided in paragraph (b) but as though no amount were included therein by virtue of subparagraph (ii) of that paragraph;

(b) the value of the security interest is the aggregate of

(i) the principal amount outstanding under the terms of the security, and any interest due or accrued thereunder, at the time of the registration of the notice of confirmation, and

(ii) an amount equal to three times the interest element, calculated as a monthly amount, of any payment of interest or of principal and interest payable under the terms of the security at the rate in effect thereunder immediately before the registration of the notice of confirmation,

and where the expropriated interest was subject to more than one security interest, the value of each security interest shall be determined in the order of its priority but in no case shall the value of any security interest to which an expropriated interest was subject exceed the value of the expropriated interest otherwise determined under this section as though it had not been subject to any security interest, less the value of each other security interest the value of which is required by this subsection to be determined in priority thereto; and

(c) where part only of the interest that was subject to a security interest was expropriated, the value of the security interest is that proportion of the value thereof otherwise determined under this subsection as though the whole of the interest subject to the security interest had been expropriated, that

(i) the value of the part only of the interest, otherwise determined under this subsection as though it had not been subject to any security interest,

is of

(ii) the value of the whole of the interest otherwise determined under this subsection as though it had not been subject to any security interest,

less the same proportion of the interest element of any payment made under the terms of the security, between the time of the registration of the notice of confirmation and the time of payment of any compensation in respect of the security interest, otherwise than pursuant to any offer made to the owner thereof under section 16.

Factors not to be taken into account

(11) In determining the value of an expropriated interest, no account shall be taken of

(a) any anticipated or actual use by the Crown of the land at any time after the expropriation;

(b) any value established or claimed to be established by or by reference to any transaction or agreement involving the sale, lease or other disposition of the interest or any part thereof, where the transaction or agreement was entered into after the registration of the notice of intention to expropriate;

(c) any increase or decrease in the value of the interest resulting from the anticipation of expropriation by the Crown or from any knowledge or expectation, prior to the expropriation, of the public work or other public purpose for which the interest was expropriated; or

(d) any increase in the value of the interest resulting from its having been put to a use that was contrary to law.

class="HistoricalNR.S., c. 16(1st Supp.), s. 24.

Decrease in value of remaining property where severance

27. (1) The amount of the decrease in value, if any, of the remaining property of an owner is the value of all of his interests in land immediately before the time of the taking of the expropriated interest, determined as provided in section 26, minus the aggregate of

(a) the value of the expropriated interest; and

(b) the value of all his remaining interests in land immediately after the time of the taking of the expropriated interest.

Injurious affection, etc., as factor in determining change in value of remaining property

(2) For the purpose of paragraph (1)(b), the value of the remaining interests in land of an owner immediately after the time of the taking of the expropriated interest shall be determined as provided in section 26, except that in determining that value account shall be taken of any increase or decrease in the value of any remaining interest in land of the owner, that immediately before the registration of the notice of confirmation was held by him together with the expropriated interest, resulting from the construction or use or anticipated construction or use of any public work on the land to which the notice relates or from the use or anticipated use of that land for any public purpose.

R.S., c. 16(1st Supp.), s. 25.

Additional factors to be taken into account

28. (1) The fact of

(a) an abandonment or revesting under this Part of an interest or remainder of an interest in land, or

(b) any undertaking given on behalf of the Crown by the Minister, or by any other person within the scope of his authority, to make any alteration, construct any work or grant or convey any other land or interest therein,

shall be taken into account, in connection with all other circumstances of the case, in determining the amount to be paid to any person claiming compensation for an expropriated interest.

Compensation payable where intention to expropriate abandoned

(2) Where an intention to expropriate an interest or remainder of an interest in land has been abandoned, the compensation payable by the Crown to the owner thereof is the amount of any actual loss sustained by the owner, after the time when the notice of intention was registered and before the time when the abandonment of the intention, or the intention to expropriate a more limited interest, as the case may be, was confirmed, in consequence of the registration

(a) of the notice of intention, where the intention to expropriate the interest has been abandoned; or

(b) of the notice of intention in so far as that notice relates to the remainder of the interest, where the intention to expropriate the remainder has been abandoned.

Application of sections 31 and 32

(3) In relation to the compensation described in subsection (2), the provisions of sections 31 and 32 apply with such modifications as the circumstances require, and as though for the reference in paragraph 31(1)(a) to “the registration of the notice of confirmation” there were substituted a reference to the confirmation of the abandonment of the intention.

R.S., c. 16(1st Supp.), s. 26.

Legal, appraisal and other costs to be paid by Crown

29. (1) The Crown shall pay to each person entitled to compensation under this Part an amount equal to the legal, appraisal and other costs reasonably incurred by him in asserting a claim for that compensation, except any of those costs incurred after the institution of any proceedings under sections 31 and 32.

Taxing

(2) The costs provided for in subsection (1) may be taxed by the official responsible for taxing costs in the Court.

R.S., c. 16(1st Supp.), s. 27.


Payment of Compensation

Notice to Minister or owner to negotiate settlement of compensation payable

30. (1) Where, after an offer of compensation in respect of an expropriated interest has been made under section 16 to any person, in this section referred to as “the owner”, the owner and the Minister are unable to agree on the amount of compensation to which the owner is then entitled, either the owner or the Minister may, within sixty days after the making of the offer, serve on the other a notice to negotiate settlement of the compensation to which the owner is then entitled.

Stay of proceedings

(2) Where a notice referred to in subsection (1) has been served as provided in that subsection, no proceedings under sections 31 and 32 shall be instituted, or if instituted shall be proceeded with, by or on behalf of either the owner or the Attorney General of Canada in respect of the expropriation, until the expiration of sixty days from the serving of the notice, unless before the expiration of those sixty days the negotiator to whom the matter is referred under subsection (4) has made a report to the Minister that he has been unable to effect a settlement and has sent a copy of his report to the owner.

Appointment of negotiators; remuneration, etc.

(3) The Governor in Council, on the recommendation of the Attorney General of Canada, may appoint one or more suitable persons, who are not persons employed in the public service as defined in subsection 3(1) of the Public Service Superannuation Act, to act as negotiators for the purposes of this section, and may fix and authorize payment of the remuneration and expenses to be paid to those persons for any period while they are so acting.

Reference to negotiator

(4) Forthwith after any notice to negotiate is served on the Minister or an owner in accordance with this section, the Minister shall refer the matter to a negotiator appointed under subsection (3) who shall, on reasonable notice to the owner and the Minister, meet with them or their authorized representatives, make such inspection of the land as he deems necessary, receive and consider any appraisals, valuations or other written or oral evidence submitted to him on which either the owner or the Minister relies for his estimation of the amount of the compensation payable, whether or not the evidence would be admissible in proceedings before a court, and endeavour to effect a settlement of the compensation payable.

Report of negotiator

(5) The negotiator shall, within sixty days from the service of the notice to negotiate, report to the Minister his success or failure in the matter of the negotiation, and shall thereupon send a copy of his report to the owner.

Statements in course of negotiation

(6) Evidence of anything said or of any admission made in the course of a negotiation under this section is not admissible in any proceedings before a court for the recovery or determination of the compensation payable to the owner.

R.S., 1985, c. E-21, s. 30; 2003, c. 22, s. 225(E).

Previous VersionProceedings to determine compensation

31. (1) Subject to section 30,

(a) a person entitled to compensation in respect of an expropriated interest may,

(i) at any time after the registration of the notice of confirmation, if no offer under section 16 has been accepted by him, and

(ii) within one year after the acceptance of the offer, in any other case,

commence proceedings in the Court by statement of claim for the recovery of the amount of the compensation to which he is then entitled; or

(b) the Attorney General of Canada may at any time after the registration of the notice of confirmation, whether or not proceedings under paragraph (a) have been commenced, file a notice in the matter in the Court setting out

(i) the particulars of the expropriation in relation to any parcel of land to which the notice of confirmation relates,

(ii) the names, so far as they have been ascertained, of each of the persons entitled to compensation in respect of an expropriated interest and the names of the persons who are to be parties to the proceedings,

(iii) the amount of any offer made under section 16 to any of the persons who are to be parties to the proceedings, and

(iv) such further facts as appear to be relevant.

Notice filed in Court

(2) A notice filed in the Court under subsection (1) shall be deemed to commence an action or suit, involving the persons stated therein to be parties to the proceedings, for the final determination of the compensation payable or any other matter or issue arising out of the registration of the notice of confirmation.

R.S., c. 16(1st Supp.), s. 29.

Statement of claim

32. (1) Each person stated in a notice filed in the Court under subsection 31(1) to be a party to the proceedings shall, within a period of thirty days after the day the notice is served on him or within such further time as the Court or a judge thereof may allow either before or after the expiration of that period, serve on the Attorney General of Canada and file in the Court a statement of claim in the proceedings.

Statement of defence

(2) The Attorney General of Canada shall, within a period of thirty days after the day on which a statement of claim referred to in subsection (1) was served on him, or, if more than one such statement was served on him, the latest day on which any of those statements was served on him, or within such further time as the Court or a judge thereof may allow either before or after the expiration of that period, serve on each person serving a statement of claim and file in the Court a statement of defence or answer thereto.

Procedure

(3) Subject to this section and section 31, an action or suit commenced as described in subsection 31(2) shall be proceeded with in accordance with the Rules and Orders of Practice and Procedure before the Court and as if the proceedings had been commenced by statement of claim filed by a person stated in a notice filed in the Court under subsection 31(1) to be a party to the proceedings.

Where application under section 18 pending

(4) Where an application has been made under section 18 and, at the time any proceedings arising out of the expropriation to which the application relates are commenced by statement of claim as described in paragraph 31(1)(a), the application has not been finally disposed of, the proceedings shall be stayed until the application is finally disposed of.

Judgment as bar to further claims

(5) A judgment, whether by consent, default or otherwise, in any proceedings under this section or section 31 bars all further claims of the parties thereto and of any persons claiming through or under them, including any claim in respect of dower or of dower not yet open or in respect of any mortgage, hypothec or other right or encumbrance, and the Court shall declare the amount of compensation payable and make such order for the distribution, payment or investment of any compensation money, and for the securing of the rights of all persons interested, as may be necessary.

R.S., c. 16(1st Supp.), s. 29.

Character of compensation

33. (1) Any compensation agreed to be payable or the compensation adjudged by the Court under this Part to be payable in respect of an expropriated interest stands in the stead of the interest.

Effect of payment in case of security interest

(2) Any compensation agreed to be payable or the compensation adjudged by the Court under this Part to be payable in respect of a security interest described in subsection 26(10) shall, for all purposes as between the owner of the interest subject to the security interest and the owner of the security interest, be deemed to discharge any liability, under the terms of the security, of the owner of the interest subject to the security interest, to the extent of the compensation so agreed or adjudged to be payable, and, where any amount or proportion of any amount described in subparagraph 26(10)(b)(ii) is included in the compensation, to be in full satisfaction of any notice or bonus required under the terms of the security in respect of the prepayment thereof resulting from the expropriation.

R.S., c. 16(1st Supp.), s. 30.

Crown in position of purchaser for value

34. Where any compensation in respect of an expropriated interest has been paid to a person of whose right to claim compensation the Crown had notice at the time of payment, no compensation is payable to another person, whether the right or interest of that other person is derived from the person to whom compensation has been paid or otherwise, if under the law of the province in which the land is situated the right or interest giving rise to the claim to compensation of that other person would have been void or unenforceable against the Crown had the Crown, at the time the notice of intention was registered, been a purchaser of the interest.

R.S., c. 16(1st Supp.), s. 31.

Set-off and recovery of excess compensation

35. Where any compensation has been paid to a person in respect of an expropriated interest pursuant to an offer made to him under section 16, the amount so paid to that person shall be deducted from the amount of the compensation adjudged by the Court under this Part to be payable to him in respect thereof, and where the amount so paid exceeds the amount so adjudged to be payable, the excess constitutes a debt due to the Crown and may be recovered by the Crown in any court of competent jurisdiction.

R.S., c. 16(1st Supp.), s. 32.

Exception

35.1 (1) Notwithstanding any other provision of this Act, any dispute as to the compensation payable in respect of an expropriated interest in land described in subsection 4(4) or (5) may be heard and determined only by the Yukon Surface Rights Board under and in accordance with the Yukon Surface Rights Board Act.

Provisions applicable

(2) Subsection 16(2) and sections 33, 35 and 36 apply, with such modifications as the circumstances require, in respect of compensation determined by the Yukon Surface Rights Board as if that compensation were compensation adjudged by the Court.

1994, c. 43, s. 86.


Interest

Definitions

36. (1) In this section,

“basic rate”

« taux de base »

“basic rate” means a rate determined in the manner prescribed by any order made from time to time by the Governor in Council for the purposes of this section, being not less than the average yield, determined in the manner prescribed by that order, from Government of Canada treasury bills;

“compensation”

« indemnité »

“compensation” means the amount of the compensation adjudged by the Court under this Part to be payable in respect of an expropriated interest;

“date of possession”

« date de la possession »

“date of possession” means the day on which the Crown became entitled to take physical possession or make use of the land to which a notice of confirmation relates;

“date of the offer”

« date de l’offre »

“date of the offer” means the day on which an offer was accepted;

“offer”

« offre »

“offer” means an offer under section 16.

Interest payable by Crown

(2) Interest is payable by the Crown at the basic rate on the compensation, from the date of possession to the date judgment is given, except where an offer has been accepted.

Interest payable where offer accepted

(3) Where an offer has been accepted, interest is payable by the Crown from the date of the offer to the date judgment is given,

(a) at the basic rate on the amount by which the compensation exceeds the amount of the offer, and

(b) in addition, at the rate of five per cent per annum on the compensation, if the amount of the offer is less than ninety per cent of the compensation,

and where an offer has been accepted after the date of possession, interest is payable at the basic rate on the compensation, from the date of possession to the date of the offer.

Additional interest where delay in offer

(4) Where an offer is not made until after the expiration of the applicable period described in paragraph 16(1)(b) for the making of the offer, interest, in addition to any interest payable under subsection (2) or (3), is payable by the Crown at the rate of five per cent per annum on the compensation, from the expiration of that period to the day on which an offer is made.

Discretion of Court where delay

(5) Where the Court is of opinion that any delay in the final determination of the compensation is attributable in whole or in part to any person entitled thereto, or that the person has failed to deliver upossession within a reasonable time after demand, the Court may, for the whole or any part of any period for which he would otherwise be entitled to interest, refuse to allow him interest, except that the Court shall not so refuse by reason only that an offer made to him was not accepted.

R.S., c. 16(1st Supp.), s. 33.


Entry and Possession

Entry for inspection appraisal

37. (1) Where a notice of intention has been registered, any person authorized in writing in that behalf by the Minister may, at any reasonable time on notice to a person in occupation of the land to which the notice relates, enter on the land for the purpose of making any inspection of the land that he is authorized by this Part to make, or for the purpose of making an appraisal of the value of the land or any interest therein.

Prevention, etc., of entry

(2) Every one who, without lawful excuse, prevents any person from or obstructs or hinders any person in doing any thing that that person is authorized by subsection (1) to do is guilty of an offence punishable on summary conviction.

R.S., c. 16(1st Supp.), s. 34.

Warrant for possession

38. (1) When the Minister, or a person acting for the Minister, is prevented from entering on or taking physical possession or making use of any land to the extent of any interest expropriated under this Part, a judge of the Court or any judge of a superior court of a province may, on proof of the expropriation and, when required, of the right of the Crown to take physical possession or make use thereof, and after notice to show cause given in such manner and to such persons who shall be parties to the proceedings as the judge prescribes, issue his warrant in accordance with the form set out in the schedule to the appropriate sheriff directing him to put the Minister, or a person authorized to act for him, in physical possession of the land to the extent of the interest expropriated.

Execution of warrant

(2) The sheriff shall forthwith execute a warrant issued to him under this section and shall make return of the warrant to the court to which the judge who issued it belongs, and of the manner in which it was executed.

R.S., c. 16(1st Supp.), s. 35.


Costs

Costs

39. (1) Subject to subsection (2), the costs of and incident to any proceedings in the Court under this Part are in the discretion of the Court or, in the case of proceedings before a judge of the Court or a judge of the superior court of a province, in the discretion of the judge, and the Court or the judge may direct that the whole or any part of those costs be paid by the Crown or by any party to the proceedings.

Idem

(2) Where the amount of the compensation adjudged under this Part to be payable to a party to any proceedings in the Court under sections 31 and 32 in respect of an expropriated interest does not exceed the total amount of any offer made under section 16 and any subsequent offer made to the party in respect thereof before the commencement of the trial of the proceedings, the Court shall, unless it finds the amount of the compensation claimed by the party in the proceedings to have been unreasonable, direct that the whole of the party’s costs of and incident to the proceedings be paid by the Crown, and where the amount of the compensation so adjudged to be payable to the party exceeds that total amount, the Court shall direct that the whole of the party’s costs of and incident to the proceedings, determined by the Court on a solicitor and client basis, be paid by the Crown.

R.S., c. 16(1st Supp.), s. 36.


Part Ii. Use Of Lands

Powers of Minister

40. A Minister, or any other person with the written consent of the Minister, may, on seven days notice sent to the owner thereof,

(a) enter into and on any land and survey and take levels of the land, and make such borings or sink such trial pits as the Minister or other person deems necessary for any purpose related to a public work;

(b) enter on any land and deposit thereon earth, stones, gravel, trees, bushes, logs, poles, brushwood or other material required for a public work, or for the purpose of digging up, quarrying and carrying away earth, stones, gravel or other material, and cutting down and carrying away trees, bushes, logs, poles, brushwood or other material therefrom, for the construction, repair or maintenance of a public work;

(c) make and use all such temporary roads to and from timber, stones, clay, gravel or sand or gravel pits as are required by the Minister or other person for the convenient passing to and from a public work during the construction, repair or maintenance thereof;

(d) enter on any land for the purpose of making proper drains to carry off water from a public work or for keeping those drains in repair;

(e) divert or alter, temporarily or permanently, the course of any river or other watercourse or any railway, road, street or other way, or raise or sink its level, in order to carry it over or under, on the level of or by the side of a public work, as the Minister or other person deems necessary for any purpose related to that work; and

(f) for the purposes of a public work, divert or alter the position of any water pipe, oil or gas pipe, sewer or drain, or any telegraph, telephone or electric wire, pole or tower.

R.S., c. 16(1st Supp.), s. 37.

Removal and replacement of wall, fence, etc.

41. Whenever it is necessary, in the construction, repair or maintenance of a public work, to take down or remove any wall or fence of any owner or occupier of land adjoining a public work, or to construct any drain or ditch for carrying off water, the wall or fence shall be replaced as soon as the necessity that caused its taking down or removal has ceased, and after it has been so replaced, or when the drain or ditch is completed, the owner or occupier of the land shall maintain the wall, fence, drain or ditch to the same extent as he might by law be required to do if the wall or fence had never been so taken down or removed, or the drain or ditch had always existed.

R.S., c. 16(1st Supp.), s. 38.

Use of explosives

42. (1) Where the Crown has contracted with any person for the construction or execution of any public work, or where, by direction of the Governor in Council, or of a Minister within the scope of the powers of the Minister, any officer, employee or agent of the Crown is charged with the construction or execution of any public work, the Governor in Council may, if in the opinion of the Governor in Council it is necessary or expedient that any material be excavated or removed by blasting or the use of explosives, authorize the work to be performed in that manner, notwithstanding that the blasting or explosions may cause damage to land or other property or to the prosecution of any industry or work that is situated in the vicinity of the work or that may be thereby affected.

Notice and application for review

(2) Notice of the authorization of any work in the manner set out in subsection (1) shall be sent at least seven days in advance to the owner of any land or other property or to any person carrying on any industry or work that may be affected by the work, and that owner or person may, within seven days after the sending of the notice to him, apply to the Governor in Council or to any person designated by him for a review of the authorization.

Compensation for damages

(3) If the construction or execution of a public work is contracted for, then, unless the contract otherwise provides, the amount of compensation payable by the Crown is chargeable to the contractor, and, if not paid by him forthwith on demand, may be recovered from him by the Crown as money paid to the contractor’s use, or may be deducted from any money in the hands of the Crown belonging or payable to the contractor.

R.S., c. 16(1st Supp.), s. 39.

Crown liable to pay compensation as though no defence of statutory authority

43. Compensation shall be paid by the Crown to each person by whom any actual loss or damage is sustained by reason of the exercise of any power under this Part, equal to the amount of any such loss or damage for which the Crown would be liable to that person if the power had not been exercised under the authority of a statute.

R.S., c. 16(1st Supp.), s. 40.


Part Iii. General

Appointment of trustee, etc., to act for persons under disability

44. (1) The Court may, where a trustee, guardian or other person representing any person under a disability or any other persons including issue unborn is unable or unwilling to act on his or their behalf or where any such person or persons including issue unborn are not so represented, after such notice as the Court may direct, appoint a trustee, guardian or other person ad litem to act on his or their behalf for the purposes of this Act.

Protection of beneficiaries

(2) The Court in making any appointment under subsection (1) may give such directions with respect to the disposal, application or investment of any compensation payable under this Act as it deems necessary to secure the interests of all persons having a claim thereto.

Contract, etc., binding

(3) Any contract, agreement, release or receipt made or given by any person appointed under subsection (1) and any conveyance or other instrument made or given in pursuance of the contract or agreement is binding for all purposes on the person by whom and any person or persons including issue unborn on behalf of whom the contract, agreement, release or receipt is made or given.

R.S., c. 16(1st Supp.), s. 41.

Schedule

(Section 38)

Warrant


In The Matter Of

the Expropriation Act

of Canada


Province ofor Territory


And In The Matter Of

...................................


To:

THE SHERIFF of the ............

WHEREAS the appropriate Minister in relation to Part I of the Expropriation Act or a person acting for him has been prevented from entering on or taking physical possession of an interest expropriated under the Act in respect of the land described as follows:

AND WHEREAS the proof required by section 38 of the Act has been made before me;

THIS IS THEREFORE to command you in Her Majesty’s name forthwith to put the said Minister or a person authorized to act for him in physical possession of the said land to the extent of the interest expropriated therein and make return of this Warrant to the (name of court) and of the manner in which it was executed.

GIVEN under my hand this ................ day of ................, 19....

.........................................

Judge

R.S., c. 16(1st Supp.), Sch. I.


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