Land Compensation Board Decision

1. ALBERTA LAND COMPENSATION BOARD
(the “Board”)
Citation: Edmonton (City) v Can-West Corporate Air Charters Ltd., 2017 ABLCB 3
Date: 2018-03-01
File No. NM 2017.0010 (Related File No. DC2014.0033)
Order No. 547
In the matter of the Expropriation Act, RSA 2000, Chapter E-13 (the “Act”)
And in the matter of an Application by Notice of Motion to dismiss the Claim:
BETWEEN:
The City of Edmonton
Applicant (Respondent)
- and -
Can-West Corporate Air Charters Ltd.
Respondent (Claimant)
BEFORE: D. A. Sibbald, Q.C., Presiding Member
(the “Panel”)
APPEARANCES:
Counsel for the Applicant (Respondent): Debi L. Piecowye and Gordon A. Buck, City of Edmonton
Law Branch
Counsel for the Respondent (Claimant): Donald P. Mallon, Q.C. and Paul Barrette, Prowse Chowne
LLP
PLACE: Held in the Edmonton, in the Province of Alberta on October 16, 2017.
ORDER

2. Background
[1] The City of Edmonton (“the City”) applied by Notice of Motion to have the Application for
Determination of Compensation in Board File No. DC2014.0033 (“the ADC”) struck and for an order
directing that the City is not liable to pay costs to the Respondent (Claimant), Can-West Corporate Air
Charters Ltd. (“Can-West”) under ss. 35 or 39 of the Act.
[2] The parties agreed to the following statement of issues and facts as set out the Notice of Motion:
a. Are these facts alone fatal to any claim by the Claimant for compensation
in accordance with the Expropriation Act, excepting ss.35 and 39 of the
Expropriation Act?
b. If the answer to (a) is affirmative, is the Claimant eligible to receive
compensation pursuant to ss.35 and 39 of the Expropriation Act?
c. For the purpose of this Notice of Motion, the parties agree the only relevant
facts are:
i. The Claimant was a lessee and in occupation of the Lands at the time
of service of a Notice of Intention to Expropriate; and
ii. The Claimant was no longer a lessee nor in occupation of the Lands at
the time of the registration of the Certificate of Approval on title to the
Lands.
[3] The parties’ written briefs were supplemented by oral submissions of counsel on October 16,
2017.
[4] During the oral submissions the following was agreed to be an additional relevant fact for the
Panel to consider:
iii. A certificate of approval was registered against title to the lands that the
Claimant had an interest at some point in time.1
[5] For ease of reference, the relevant sections of the Act are set out in Appendix A to this Order.
Reasons for Decision
Overview
[6] The Board’s authority to determine the compensation payable under the Act is found at s. 29,
which requires the Board to determine the compensation when the parties have not agreed to same.2
[7] S. 42 of the Act provides the Board with the authority to award compensation “when land is
expropriated”. The central question here is whether compensation can be payable under the Act to a party
who had a leasehold interest at the time of the Notice of Intention to Expropriate (“Notice of Intention”)
1
Transcript page 59 at lines 12 – 26 and page 60 at lines 1 – 18.
2
This authority is subject to s. 29(3) where the expropriation is by the Crown and an owner elects to have
compensation fixed by the Court.
Page 2

3. but not at the time the Certificate of Approval is registered at the Land Titles Office.
[8] The City submits that since Can-West had no estate or interest in the land when registration
occurred the Board does not have jurisdiction to hear the claim for compensation as there was no
expropriation.
[9] Can-West argues that the facts alone are not fatal to its claim since compensation may be payable
based on additional facts. Those additional facts, it is said, would take into consideration the position that
expropriation is a process, which takes place over time; a claimant who is served with a Notice of
Intention may lose its property rights before the certificate of approval is registered. If the expropriation
caused the loss of the property rights prior to the registration of the Certificate of Approval, Can-West
maintains compensation is payable.
Issue 1: Are the facts alone fatal to the Can-West’s claim for compensation under the Act, excepting
ss. 35 and/or 39 of the Act?
a. Introduction
[10] For the Board to have authority to determine Can-West’s claim for compensation in the ADC
there must be an expropriation. Expropriation is defined in the Act as: “the taking of land without the
consent of the owner by an expropriating authority in the exercise of its statutory powers”.3
(emphasis
added)
[11] The agreed-upon facts establish that, pursuant to s. 8 of the Act, a Notice of Intention was served
on Can-West. When that occurred was not disclosed.
[12] The required contents of a Notice of Intention are set out in s. 8(5) of the Act. Its purpose is to
provide those who have an interest in the subject land with notice that, in this case, the City intends to
expropriate the land, including all interests in it.
[13] Can-West was a lessee in occupation of the subject land when the Notice of Intention was served.
As a result, Can-West was an “owner” of the subject land as defined in ss. 1(h) and (k) of the Act.
[14] After receiving a Notice of Intention, an owner as defined in the Act is entitled to object to the
proposed expropriation, which, subject to certain circumstances, results in an inquiry being held under s.
15 to determine if the intended expropriation is “fair, sound and reasonably necessary”.
[15] After receipt of the report from the inquiry, the approving authority may issue a certificate of
approval, which the expropriating authority may then register at the land titles office. Registration has the
effect under s. 19(1) of vesting title to the subject land in the expropriating authority. In this case, the City
was both the approving authority and the expropriating authority.
[16] The parties have agreed that a certificate of approval was registered for the subject lands. Under s.
19(1), “title to the land described in the certificate as to the interest specified in the certificate” vested in
the City. The Panel was not advised of the interest specified in the certificate.
[17] At some unknown time between service of the Notice of Intention and registration of the
certificate of approval, Can-West was no longer a lessee nor in occupation of the lands. In addition to
3
S. 1(g).
Page 3

4. there being no information provided as to when that occurred, the Panel was not informed how or why it
occurred.
[18] The City says there no was expropriation of Can-West’s interest in the land to trigger the right to
compensation. It argued that since Can-West no longer had an interest in the land when title vested in the
City, there cannot have been a “taking of land” and the Board does not have jurisdiction to hear this
claim.
[19] Can-West submits that the “taking of land” need not occur at the finite time when the certificate
of approval is registered. Rather, it may involve the loss of an interest in land causally connected to the
expropriation process but lost prior to the registration of the certificate at the land titles office.
b. Findings and Analysis
[20] Can-West was served with a Notice of Intention by the City and the land subject to that Notice
was ultimately expropriated by the City. Can-West has applied to the Board for compensation arising
from that expropriation. To be successful in an application to strike that claim for compensation without
a hearing on the facts the City bears the onus of establishing that the agreed facts provided to the Panel
support a conclusion that the Board does not have jurisdiction to consider this claim.
[21] Given the limited factual information and the summary nature of this application, the Panel’s task
is not to determine what caused the loss of Can-West’s interest in the subject land. Rather the task is to
determine whether the Board has jurisdiction to consider a claim for compensation under the Act when a
claimant who was an owner at the time of the Notice of Intention is no longer a lessee nor in occupation
of the Lands when the certificate of approval is registered.
[22] Since there must be an expropriation or an abandonment of expropriation to trigger a claim for
compensation and an expropriation must be a “taking of land”, the Panel must consider the proper
interpretation of that phrase as found in s. 1(g) of the Act.
[23] The leading case on statutory interpretation is Rizzo & Rizzo Shoes Ltd. (Re) where the Supreme
Court of Canada said:
Although much has been written about the interpretation of legislation
…Elmer Driedger in Construction of Statutes (2nd ed. 1983) best
encapsulates the approach upon which I prefer to rely. He recognizes that
statutory interpretation cannot be founded on the wording of the
legislation alone. At p. 87 he states:
Today there is only one principle or approach, namely, the words
of an Act are to be read in their entire context and in their
grammatical and ordinary sense harmoniously with the scheme of
the Act, the object of the Act, and the intention of Parliament.4
[24] The application of the Supreme Court of Canada’s decision in Toronto Area Transit Operating
Authority v. Dell Holdings Ltd.5
was central to the dispute between the parties.
4
[1998] 1 SCR 27 at para 21.
5
[1997] 1 SCR 32 [Dell].
Page 4

5. [25] The City asserted that the Court’s use of a broad, liberal and purposive approach to interpret the Act
is only applicable when considering statutory provisions related to the assessment of damages and where
there is “an irreducible ambiguity”.6
[26] The City’s position is too narrow. While the issue in Dell may be narrowly stated to be
determining if damages for pre-expropriation losses are compensable, the Court spoke broadly in terms of
the purpose of the Act as remedial legislation, which “must be given a broad and liberal interpretation
consistent with its purpose. Substance, not form is the governing factor.”7
[27] Mariner Real Estate Ltd. v. Nova Scotia (Attorney General) considered Dell in reaching a
conclusion that,
the legislative scheme for compensation draws a sharp dividing line
between loss resulting from a taking of land and the loss of value of land
caused by other governmental activities. In short, a sharp, and in a sense,
arbitrary division is made for the purposes of compensation between
takings and losses caused in other ways. 8
[28] The issue before the Court in Mariner was whether governmental activities including the
designation of the subject land as a beach and the denial of building permits was an expropriation. The
Court noted that the province did not acquire the land as required under the Nova Scotia Expropriation
Act.9
Absent there being an expropriation, the Court found that it was inappropriate to interpret the statute
using a presumption in favour of compensation.
[29] Unlike Mariner, there has been an expropriation. The Act was engaged when the City served the
Notice of Intention on the Claimant as an owner. The question is whether that acquisition must be at the
same time as the loss of Can-West’s lease or occupation. In other words, to make a claim for
compensation is the leaseholder owner required to be a lessee or in occupation of the Lands until the
expropriation is completed and title transfers for the Board to have the authority to determine
compensation? The City’s position is that if the Claimant is not a lessee nor in occupation of the lands at
the time of registration of the certificate of approval, its interest in the land was not taken and therefore
there was no expropriation.
[30] Checkman Holdings (Calgary) Ltd. v. Spur Valley Improvement District10
distinguished Dell on
the basis that “no interest was ultimately taken by a completed expropriation process” in finding that
successful claims for compensation could not be advanced following the abandonment of an
expropriation. In the present case, the City acquired title to the land using the procedure under the Act.
[31] Marsdin v. Hamilton (City)11
is another example of a case where it was found that no
compensation was payable when the expropriation process was commenced but not completed.
[32] Unlike the statutes considered in Checkman and Marsdin, s. 24 of the Act provides for
compensation to be payable in the event an expropriation is abandoned. The City asserts that s. 24(1),
which contemplates specific compensation when an expropriation is abandoned, is evidence that
6
1739061 Ontario Inc. v. Hamilton-Wentworth District, 2016 ONCA 210 at para 51.
7
Dell, supra note 5 at para 21.
8
177 DLR (4th) 696 (NSCA) at para 75.
9
Ibid. at para 106.
10
2008 BCCA 83 (CanLII).
11
110 LCR 142 (OMB).
Page 5

6. the compensation provisions in s. 42 can only occur on the filing of a Certificate of Approval.
Of course, in the present case the expropriation was not abandoned.
[33] Scott’s Music Centre Ltd. v. Calgary (City) [Scott’s]12
is also distinguishable since no certificate
of approval was registered and thus it was determined there had not been an expropriation.
[34] Calgary (City) v. Richmond Services Ltd. [Richmond]13
is another example where the
expropriation process was not utilized to acquire title.
[35] In Downey v. Red Deer (City) [Downey]14
and Landex Investments Ltd. v. Red Deer (City)
[Landex]15
the issue was the effective date for determining compensation. The reasoning is not
applicable to the issue at hand.
[36] The Court of Appeal dismissed the claim for compensation in Minute Muffler Installations Ltd. v.
Alberta (Minister of Housing & Public Works) [Minute Muffler]16
on the basis that no loss had been
suffered. The Panel has insufficient information to determine if Can-West suffered any compensable
losses.
[37] It is also noteworthy that Scott’s, Richmond, Downey, Landex. and Minute Muffler were decided
before Dell and therefore not premised on the guidance provided by the Supreme Court of Canada.
[38] The City’s proposed interpretation requires a party to have an interest in the land when the title
vests in the expropriating authority. No such requirement exists in the Act, nor is the Panel convinced that
it is the Legislature’s intent. The purpose of the Act is “to provide fair indemnity to the expropriated
owner for losses suffered as a result of the expropriation”. 17
The City’s interpretation creates a barrier to
compensation for a class of owners and is contrary to the concept of fair indemnity.
[39] The Court in Dell clearly articulated that expropriation is part of a process. It “is not used in the
restrictive sense of signifying merely the transfer of title but in the sense of the process of taking the
property for the purpose for which it is required.”18
[40] The ordinary meaning of taking of land requires a loss by one party and an acquisition by the
other. It follows that if the claimant was a lessee and in occupation of the lands when formal
expropriation proceedings were commenced under the Act and is no longer the lessee and in occupation of
the subject land, that claimant has suffered a loss. If the resulting loss is causally connected to the
expropriation and the City acquired that land through the expropriation procedures under the Act then
there has been an expropriation or taking of land. There would be no further requirement for the claimant
to have retained the leasehold interest or occupation in the land until the Certificate of Approval was
registered.
[41] The obligation on an owner to mitigate its losses supports this view. The Court in Thunderbird
Entertainment Ltd. v. Greater Vancouver Transportation Authority stated:
12
(1981) 23 LCR1811 (ABLCB).
13
(1982), 27 LCR 94 (ABLCB).
14
(1976), 11 LCR 345 (ABLCB).
15
[1991] 6 WWR 275 (ABCA).
16
1984 ABCA 35.
17
Dell, supra note 5 at para 27.
18
Ibid., at para 37.
Page 6

7. That Thunderbird took prudent steps to mitigate its loss in the face of the
expropriation ought not to foreclose or in some measure diminish its right
to compensation so long as it is able to demonstrate causation. It does not
serve the public interest to compel landowners to await expropriations and
then sue for full compensation in circumstances where they are able to
proceed, as Thunderbird did, so as to reasonably accommodate the project
and leave compensation to be determined at a later date.19
[42] Similarly, it would not in the public interest to disqualify a lessee from compensation if after the
expropriation procedure is commenced the lessee reduces its losses before registration of the certificate of
approval by leaving the leasehold for a replacement leasehold. If the lessee’s actions were causally
connected to the expropriation it would be inconsistent to provide compensation to a party who does not
mitigate its losses and deny compensation to a party who acts in accordance with its legal obligation.
a. Conclusion
[43] The Panel finds that the facts presented alone are not facts alone fatal to any claim by the
Claimant for compensation in accordance with the Expropriation Act, excepting ss.35 and 39 of the
Expropriation Act and the Board has the authority to determine the compensation claimed in the ADC.
Issue 2: If the answer to (a) is affirmative, is the Claimant eligible to receive compensation pursuant
to ss.35 and 39 of the Expropriation Act?
[44] Having answered Issue 1 in the negative, the Panel will not consider the question.
Order
1. The application to strike the Application for Determination of Compensation in Board File No.
DC2014.0033 and for an order directing that the City is not liable to pay costs to the Respondent
(Claimant), Can-West Corporate Air Charters Ltd. (“Can-West”) under s. 35 or 39 of the Act is dismissed.
2. The issue of the costs payable for this application is reserved and will be determined as part of the
proceedings under Board File No. DC2014.0033.
LAND COMPENSATION BOARD
Don Sibbald, Q.C., Presiding Member
19
2011 BCSC 636 (CanLII) at para 188; aff’d on other grounds 2012 BCCA 194.
Page 7

8. APPENDIX A
RELEVANT LEGISLATION
Relevant portions of the Expropriation Act, RSA 2000, c E-13:
1 In this Act,
(g) “expropriation” means the taking of land without the consent of the owner
by an expropriating authority in the exercise of its statutory powers;
(h) “land” means land as defined in the authorizing Act and if not so defined,
means any estate or interest in land;
(k) “owner” means
(i) a person registered in the land titles office as the owner of an estate in
fee simple in land,
(ii) a person who is shown by the records of the land titles office as having
a particular estate or an interest in or on land,
(iii) any other person who is in possession or occupation of the land,
(iv) any other person who is known by the expropriating authority to have
an interest in the land, or
(v) in the case of Crown land, a person shown on the records of the
department administering the land as having an estate or interest in the
land;
8(1) The expropriating authority shall file a notice of intention to expropriate in
the land titles office.
(2) The expropriating authority shall forthwith serve a copy of the notice of
intention on
(a) every person shown in the records of the land titles office as having an
interest in the land, and
(b) every other person who is known to the expropriating authority to have
an interest in the land.
(3) When the expropriating authority is a person other than the Crown or a
municipality, the expropriating authority shall forthwith serve a copy of the notice
of intention on the approving authority.
(4) The notice of intention shall be published in at least 2 issues, not fewer than 7
nor more than 14 days apart, of a newspaper in general circulation in the locality
in which the land is situated.
(5) A notice of intention shall contain

9. (a) the name of the expropriating authority,
(b) the description of the land,
(c) the nature of the interest intended to be expropriated,
(d) an indication of the work or purpose for which the interest is required,
(e) a statement of the provisions of sections 6 and 10,
(f) the name and address of the approving authority, and
(g) a statement that a person affected by the proposed expropriation need
not serve an objection to the expropriation in order to preserve the person’s
right to have the amount of compensation payable determined by the Board or
the court, as the case may be.
15(1) When the approving authority receives an objection, it shall forthwith notify
the Minister.
(2) Within 15 days after receiving notice that the approving authority has
received an objection, the Deputy Minister or the Deputy Minister’s designate
shall appoint an inquiry officer, who is not an officer or employee of the Crown or
of any agency of the Crown, to conduct an inquiry in respect of the intended
expropriation.
(3) The Deputy Minister or the Deputy Minister’s designate may appoint a chief
inquiry officer who shall exercise the power of the Deputy Minister or the Deputy
Minister’s designate under subsection (2) and who has general supervision and
direction over inquiry officers.
(4) When the expropriating authority is other than the Crown or a municipality,
the Deputy Minister or the Deputy Minister’s designate shall appoint the Board to
carry out the functions of an inquiry officer under this Act.
(5) The inquiry officer shall fix a time and place for the inquiry and shall cause
notice of the inquiry to be served on the expropriating authority and on each
person who has made an objection to the expropriation.
(6) The expropriating authority and each person who has objected shall be
parties to the inquiry.
(7) The inquiry before the inquiry officer shall be held in public.
(8) The inquiry officer shall inquire into whether the intended expropriation is
fair, sound and reasonably necessary in the achievement of the objectives of the
expropriating authority.
(9) For the purposes of subsection (8), the inquiry officer

10. (a) shall require the expropriating authority to attend at the inquiry and to
produce any maps, plans, studies and documents that the inquiry officer
considers necessary for the inquiry officer’s inquiry;
(b) may add as a party to the inquiry any owner whose land would be
affected by the expropriation of the land concerned in the inquiry and any
person who appears to have a material interest in the outcome of the
expropriation;
(c) shall give each party to the inquiry a reasonable opportunity to present
evidence and argument and may permit examination and cross-examination,
either personally or by counsel or agent;
(d) may inspect the land intended to be expropriated or the land of an owner
referred to in clause (b), either with or without the presence of the parties;
(e) has general control over the procedure at the inquiry, including power to
adjourn the hearing and change the venue;
(f) may combine 2 or more related inquiries and conduct them as one
inquiry;
(g) may swear witnesses;
(h) may provide for a transcript of the evidence;
(i) is not bound by the rules of law concerning evidence.
(10) The expropriating authority shall pay the reasonable costs in connection
with the inquiry
(a) of the inquiry officer, and
(b) of the owner unless the inquiry officer determines that special
circumstances exist to justify the reduction or denial of costs.
19(1) The expropriating authority may register the certificate of approval in the
land titles office and, subject to the Highways Development and Protection Act
and the Municipal Government Act, registration vests in the expropriating
authority the title to the land described in the certificate as to the interest specified
in the certificate.
(2) The certificate of approval shall contain a description of the land being
expropriated that is satisfactory to the Registrar of Land Titles or shall be
accompanied with a plan of survey of the land.
24(1) An expropriating authority may abandon its intention to expropriate, either
wholly or partially, at any time before registration of the certificate of approval in
the land titles office.
(2) The expropriating authority shall serve a copy of a notice of abandonment on
all persons who were entitled to be served with the notice of intention to

11. expropriate, including the approving authority, and shall deposit the notice in the
appropriate land titles office.
(3) If an expropriation has been abandoned, the expropriating authority shall pay
to the owner any actual loss sustained by the owner and the reasonable legal,
appraisal and other costs incurred by the owner up to the time of abandonment, as
a consequence of the initiation of the expropriation proceedings.
(4) Compensation payable under this section, including costs, must be fixed by
the Board.
29(1) When the expropriating authority and the owner have not agreed on the
compensation payable under this Act, the Board shall determine the
compensation.
(2) The Board shall also determine any other matter required by this or any other
Act to be determined by the Board.
(3) Notwithstanding subsection (1), when the expropriation is by the Crown, the
owner may elect to have the compensation fixed by the court and in that case the
provisions of this Act relating to determination of compensation by the Board
apply with all necessary modifications to the proceedings before the court.
35(1) The owner may obtain an independent appraisal of the owner’s interest that
has been expropriated and the expropriating authority shall pay the reasonable
cost of the appraisal.
(2) The owner may obtain advice from any solicitor of the owner’s choice as to
whether to accept the proposed payment in full settlement of compensation, and
the expropriating authority shall pay the owner’s reasonable legal costs for that
advice.
39(1) The reasonable legal, appraisal and other costs actually incurred by the
owner for the purpose of determining the compensation payable shall be paid by
the expropriating authority, unless the Board determines that special
circumstances exist to justify the reduction or denial of costs.
(2) The Board may order by whom the costs are to be taxed and allowed.
(3) When settlement has been made without a hearing and the owner and the
expropriating authority are unable to agree on the costs payable by the
expropriating authority, the Board may determine the costs payable to the owner
and subsections (1) and (2) apply.
(4) On appeal by the expropriating authority, costs of the appeal shall be paid on
the same basis as they are payable under subsection (1) and on appeal by the
owner, the owner is entitled to the owner’s costs when the appeal is successful
and, when unsuccessful, the costs are in the discretion of the Court of Appeal.
42(1) When land is expropriated, the expropriating authority shall pay the owner
the compensation as is determined in accordance with this Act.

12. (2) When land is expropriated, the compensation payable to the owner must be
based on
(a) the market value of the land,
(b) the damages attributable to disturbance,
(c) the value to the owner of any element of special economic advantage to
the owner arising out of or incidental to the owner’s occupation of the land to
the extent that no other provision is made for its inclusion, and
(d) damages for injurious affection.
51(1) The expropriating authority shall pay to a tenant occupying expropriated
land, in respect of disturbance, so much of the cost referred to in section 50 as is
appropriate having regard to
(a) the length of the term,
(b) the portion of the term remaining,
(c) any rights to renew the tenancy or the reasonable prospects of renewal,
(d) in the case of a business, the nature of the business, and
(e) the extent of the tenant’s investment in the land.
(2) The tenant’s right to compensation under this section is not affected by the
premature determination of the lease as a result of the expropriation.