Patterson Law Expropriation Blog

Patterson Law routinely represents parties involved in all aspects of expropriation cases. Our expropriation practice is national in scope and we represent all classes of parties to expropriations.

The Shadow of Expropriation

Feb 4

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2/4/2016 10:45 AM  RssIcon

In Toronto Area Transit Operating Authority v Dell Holdings Ltd, [1997] 1 SCR 32, the Supreme Court of Canada adopted reasoning from a decision of the House of Lords in which a claimant had sought compensation for loss of profit which occurred after the announcement of expropriation, but before the land was actually taken. This period was referred to as the “shadow period”. In the case cited by the Supreme Court of Canada, the majority of the Law Lords found that the losses sustained in this period were caused by the expropriation and that the corresponding damages should be awarded.

Justice Cory, for the majority, stated that he was in complete agreement with the reasoning of the House of Lords. In Dell Holdings, Dell had suffered damages because its development business was curtailed for more than two years while the authority determined which portion of its land was needed for a Go-Train Station. Justice Corey held that the increased cost of the claimant’s development business during the shadow period between the announcement of potential expropriation and the actual taking of the land were caused by the expropriations and were therefore compensable as disturbance damages.

In Nova Scotia, this was referred to in Bishop (re), 2010 NSUARB 231 in which counsel for the claimant argued that this same reasoning should apply to the costs portion of the landowners’ compensation claim. Counsel argued that while Dell Holdings did not explicitly make a pronouncement on whether the costs incurred in relation to the shadow period were compensable, this would logically flow from the Expropriation Act. Counsel argued that all claims caused by the expropriation must be covered, including reasonable legal fees. The Board agreed, and held that compensation for an expropriation in Nova Scotia is recoverable throughout the whole of the expropriation process including the “shadow period”.

If you have questions or would like to discuss this topic further, please contact Jeremy Smith at Patterson Law at 1-888-897-2001.

Please note that this article is meant to provide information only and is not intended to confer legal advice or opinion. If you have any further questions please consult a lawyer. Please note as well that many of the statements are general principles which may vary on a case by case basis.