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Municipalities’ Right of Entry under the Expropriation Act
Municipalities may need to acquire privately owned lands for infrastructure projects, such as road widenings. The land can be acquired through a straightforward purchase or through expropriation. In any event, the municipality will typically need to enter the land to conduct surveys before they formally hold the title. It is always wise to negotiate a Right of Entry Agreement with landowners to create certainty and protection for the municipality. Still, there will inevitably be situations where a landowner refuses to allow entry or insists on exorbitant or unreasonable terms. When these difficulties arise, the municipality may take unilateral steps to enter the property and conduct surveys, but only if the proper steps are followed. This article discusses the statutory authority for this power and highlights some risks that may arise for the municipalities that wield it.
Expropriation Act
Section 63 of the Expropriation Act, RSA 2000, c E-13 permits a municipality to enter the land without the consent of the owner “whether or not expropriation proceedings have been commenced by registration of the notice of intention to expropriate” for the purpose of making a survey, examining the land, conducting soil tests, making an appraisal, or “other necessary arrangements to determine the location of any proposed works or the description of the land that it may require in connection with it.” Section 63(2) gives further power to “cut down any trees or brush that obstruct the running of survey lines.”
This provision is significant because it allows the municipality to enter the property without the consent of the landowner and without the need to formally initiate expropriation proceedings by registering a Notice of Intention to Expropriate. However, this provision still requires the municipality to make reasonable efforts to give notice of “the proceedings” to the landowner. At first glance, it may seem contradictory to require the municipality to give notice of proceedings when the same provision does not require formal expropriation proceedings. However, this reflects the fact that expropriation is a process that transcends formal statutory steps. Therefore, while there is no requirement to take the first formal step under the Act to start an expropriation prior to entry, there must at least be a genuine intention on the municipality’s part to expropriate if a voluntary acquisition is not negotiated.
As a result, the best practice for municipalities is to refrain from using section 63 to enter private land until Council passes a motion that approves expropriation proceedings. While this step is necessary before formal expropriation proceedings begin, it does not commit the municipality to actually following through with expropriation. This scenario – where Council approves an expropriation that might not occur – is contemplated by section 63(4) of the Act. In that case, the landowner may provide notice of a claim for compensation within six months of the notice of proceedings.
In addition to making reasonable efforts to provide notice of the proceedings and the intended access, section 63(4) requires the municipality to compensate the owner for any damage caused by the municipality’s entry. A classic example is when the municipality cuts down trees. This practice is expressly authorized under section 63, as noted above. But if the municipality cuts down trees in a survey on property that is not taken, the municipality is responsible to compensate.
Determining the precise amount of compensation for damages is very fact specific and can be determined in any number of ways. For example, damages could be calculated by adding up the value of each tree that is cut down, which nearly always results in a higher order of compensation, or they could be measured by calculating the loss of the market value to the land (if any), as was done in Ross v R, 1980 CarswellAlta 69. Generally, the chances are much higher that trees will be individually valued if they surround and create a functional benefit to a homestead.
Potential risks
Section 63 (and provisions like it in other provinces) have not received much judicial attention over the years. However, the BC case of Gemex Developments Corp v Coquitlam (City), 2010 BCSC 1616 [Gemex]provides interesting commentary on how the risk of a finding of trespass against a municipality may be minimized by provisions like section 63. In Gemex, the City of Coquitlam formally expropriated a portion of land. However, to access this land, its agents entered ‘new’ land that was recently exposed by a receding waterline. The owner sued the City for trespass on the exposed land. In the event that the new land did in fact belong to the owner (a question that was left to be determined), the Court relied on BC’s equivalent provision to section 63 to dismiss the claim. The Court found that the City would have expropriated the new land if it did belong to the owner. Given the City’s power to enter lands without the consent of the landowner pursuant to the Expropriation Act, the Court found that the owner had no claim against the City for trespass.
Gemex has not been considered in Alberta, and it is important to note that the decision would only assist in defending against a trespass claim. It would not relieve a municipality from its obligation to compensate a landowner for any damage caused as a result of the entry. Gemex is also subject to scrutiny as it is difficult to reconcile the decision with the express notice requirements contained in the statute. Notwithstanding this decision, there is likely still a risk that a municipality would be liable in trespass if it enters land without consent if it does not provide the notice required by section 63.
If nothing else, Gemex illustrates the potential extent and usefulness of section 63 while also highlighting some of the risks that can arise if a municipality does not strictly follow the requirements in section 63 provision. As always, it is best to proceed with care and avoid litigation altogether. If you have any questions about your municipality’s rights and obligations relating to expropriation, please contact Greg Weber or Shauna Finlay.
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This post is meant to provide information only and is not intended to provide legal advice. Although every effort has been made to provide current and accurate information, changes to the law may cause the information in this post to be outdated.
