Expropriation Act, R.S.N.B. 1973, c. E-14

Citation:	Expropriation Act, R.S.N.B. 1973, c. E-14
Information about this text:	Consolidation: June 22, 2006
Enabled Regulations:	2 Regulations
URL:	http://www.canlii.org/nb/laws/sta/e-14/20080314/whole.html
Version downloaded by CanLII on 2008-03-14

CHAPTER E-14

Expropriation Act

Chapter Outline

Definitions

council of a municipality - conseil d’une municipalité

Court - Cour

expropriate - exproprier

expropriating authority - autorité expropriante

injurious affection - préjudice

land - bien-fonds

municipality - municipalité

Officer - commissaire

owner - propriétaire

registered owner - propriétaire enregistré

served - signifié

statutory authority - autorité légale

tenant - locataire

Crown bound by Act

2(1)

Application of Act

2(2)

Necessity of compliance with Part I

2(3), (4)

PART I
EXPROPRIATION PROCEDURE

Appointment of Expropriations Advisory Officer

3(1)

Repealed

3(2)

Period of appointment, salary

3(2.1)

Repealed

3(2.2)

Repealed

3(2.3)

Repealed

3(2.4)

Application of Public Service Superannuation Act

3(2.5)

Repealed

3(2.6)

Election of pension

3(2.7)

Death of Officer with right to elect pension

3(2.8)

Death of Officer in receipt of pension

3(2.9)

Rules regarding election of pension

3(2.91), (2.92)

Repealed

3(3)

Repealed

3(4)

Repealed

3(5)

Repealed

3(6)

Acting officer

3(7)

Repealed

3(8)

Re-appointment of Officer

3(9)

Repealed

3(10)

Appointment of an Expropriation Advisory Officer

3.1(1)

Powers and duties of an Officer under this section

3.1(2)

Report of an Officer

3.1(3)

Remuneration of an Officer

3.1(4)

Powers of Cabinet or Minister to expropriate

Power of entry into land

Notice of intention

6, 8

Expropriation by other than expropriating authority

Notice of objection

Hearing of objection

Officer to conduct hearing

Information provided by expropriating authority

12(1)

Notice to be filed with Officer

12(1.1)

Postponement of hearing

12(2)

Consolidation of proceedings

Amendment

Duty of expropriating authority or applicant at hearing

15(1)

Rights of person filing notice of objection at hearing

15(2)

Rules of procedure at hearing

15(3)

Repealed

Report of Officer

17(1)

Powers of Cabinet, municipality on receipt of Officer’s report

Notice of expropriation

19(1)-(8.1)

Court order quashing notice of expropriation

19(9), (10)

Abandonment of expropriation

19(11), (11.1)

Extension of time for registration of notice

19(12), (13)

Compensation of owner on abandonment of expropriation

19(14)

Determination of title to land

Right of entry onto lands

Possession of land by expropriating authority

Court warrant respecting resistance to expropriation

Abandonment

PART II
COMPENSATION

Duty of statutory authority to compensate

Repealed

Jurisdiction of Court

30(1)

Invocation of Jurisdiction of Court

30(2)-31(2)

Contents of notice of arbitration

31(3)

Consolidation of proceedings by Court

31(4)

Procedure before Court

Repealed

Agreement by statutory authority

Effect of lack of agreement respecting compensation

Computation of compensation respecting land

38(1)

Compensation respecting property other than land

38(2)

Improvements made by owner

38(3)

Market value of land

39(1)

Market value respecting school, hospital facility, etc

39(2)

Market value where part of owner’s land taken

39(3)

Exceptions respecting determination of market value

39(4)

Compensation respecting relocation of residential property

Separate market values of separate interests in land

Secured transactions

Effect of prepayment of mortgage

Disturbance

44, 45

Injurious affection

46-48

Effect of expropriation on lease

Interest

Award of compensation lower than amount tendered

Costs

Offer of settlement

52.1

Agreement by statutory authority with owner

Effect of award of compensation on claim to land expropriated

Payment into court by statutory authority

Regulations

PART III
TRANSITION AND REPEAL

Application of Act

57, 60

Duty of Board to stand in place of Land Compensation Board

Reference to this Act; reference to Land Compensation Board

Expropriations during transition period

Officer to stand in place of Expropriations Advisory Board

Court to stand in place of Property Compensation Board

Temporary continuance of Property Compensation Board

Reference in other Acts to Expropriations Advisory Board, Property Compensation Board

1In this Act

“Board” Repealed: 1983, c.31, s.1.

“council of a municipality” includes the rural community council of a rural community incorporated under the Municipalities Act;

“Court” means The Court of Queen’s Bench of New Brunswick and includes any judge thereof;

“expropriate” means to take land without the consent of the owner and, subject to the Clean Environment Act, includes diverting or authorizing the diversion of a watercourse where such diversion affects land of an owner other than the person diverting or seeking the authorization to divert the watercourse but does not include the cancellation or suspension of any lease, licence or permit under the Crown Lands and Forests Act or regulations thereto, or the withdrawal or removal, in accordance with that Act and regulations thereto, of any land from a licence made thereunder;

“expropriating authority” means any person authorized to expropriate by this or any other Act and includes a Minister of the Crown;

“injurious affection” means,

(a)where a statutory authority takes part of the land of an owner,

(i)the reduction in market value thereby caused to the remaining land of the owner by the taking or by the construction of the works thereon or by the use of the works thereon or any combination of them, and

(ii)such personal and business damages resulting from the construction or use, or both, of the works as the statutory authority would be liable for if the construction or use were not under the authority of a statute, or

(b)where the statutory authority does not take part of the land of an owner,

(i)such reduction in the market value of the land of the owner, and

(ii)such personal and business damages,

resulting from the construction and not the use of the works by the statutory authority, as the statutory authority would be liable for if the construction were not under the authority of a statute,

and for the purpose of this definition, part of the land of an owner shall be deemed to have been taken where the owner retains land contiguous to that taken or retains land of which the use was enhanced by unified ownership with that taken;

“land” includes any estate, easement, licence or other right or interest in, to, over or affecting land;

“municipality” includes a rural community incorporated under the Municipalities Act;

“Officer” means the Expropriations Advisory Officer appointed under section 3 and includes, for the purposes of paragraphs 10(1.1)(b) and (c), sections 11, 12, 13, 14, 15 and 17 and subsection 19(11.1), a person appointed under section 3.1;

“owner” includes any person holding an estate, easement, licence or other right or interest in, to, over or affecting land;

“registered owner” means any owner of land whose interest in the land is defined and whose name is specified in an instrument in the proper registry office;

“served” means served personally on a person or on an adult residing at the residence of the person who is at the residence at the time of service, or sent by registered mail to the person at his latest known address, and where sent by registered mail service shall be deemed to have been effected on the fifth day after the day of mailing;

“statutory authority” means the Crown or any other person authorized by statute to expropriate or to cause injurious affection to land, or, upon condition that compensation be paid therefor, to take, interfere with or injure property other than land;

“tenant” includes a lessee occupying premises under any tenancy whether written, oral or implied.

1973, c.6, s.1; 1975, c.21, s.1; 1979, c.41, s.48; 1982, c.3, s.25; 1983, c.31, s.1; 1991, c.13, s.1; 2005, c.7, s.29.

2(1)This Act binds the Crown.

2(2)Where there is a conflict between a provision of this Act and a provision of any other general or special Act that does not expressly state that it supersedes this Act, the provision of this Act applies.

2(3)Notwithstanding any other Act, no expropriation by an expropriating authority is valid unless Part I is complied with.

2(4)Subsection (3) does not apply to a taking of possession under subsection 10(1) of the Health Act or under the Emergency Measures Act, or to an expropriation or taking of possession under the Telephone Companies Act.

1973, c.6, s.2; 1978, c.18, s.1.

PART I

EXPROPRIATION PROCEDURE

3(1)There shall be an Expropriations Advisory Officer who shall be appointed by the Lieutenant-Governor in Council.

3(2) Repealed: 1979, c.20, s.1.

3(2.1)The Officer shall hold office during the period specified in the appointment and shall be paid an annual salary which the Lieutenant-Governor in Council shall determine.

3(2.2) Repealed: 1983, c.31, s.2.

3(2.3) Repealed: 1983, c.31, s.2.

3(2.4) Repealed: 1979, c.20, s.1.

3(2.5)The Public Service Superannuation Act applies to an Officer who immediately prior to the coming into force of this subsection was chairman of the Expropriations Advisory Board.

3(2.6) Repealed: 1983, c.31, s.2.

3(2.7)Notwithstanding subsection (2.5), an Officer who, immediately prior to the coming into force of this subsection, was chairman of the Expropriations Advisory Board is entitled to elect to receive, in lieu of benefits under subsection (2.5), a pension equal to the annuity payable to a Provincial Court judge under the Provincial Court Act if he has served an aggregate of at least ten years as Officer and chairman of the Expropriations Advisory Board and has attained the age of at least sixty-five years at the time of his resignation.

3(2.8)Where an Officer who has a right to elect a pension under subsection (2.7) dies,

(a)his surviving spouse, or

(b)if there is no surviving spouse, the guardian of any child or children under the age of eighteen years,

may elect, within sixty days of being notified of the right of election, to receive a pension equal to the annuity payable under subsection 15(4) or (6), as the case may be, of the Provincial Court Act, in lieu of benefits under the Public Service Superannuation Act.

3(2.9)Where an Officer who is in receipt of a pension and benefits under subsection (2.7) dies, his surviving spouse or children are entitled to a pension equal to an annuity provided under subsection 15(4) or (6) of the Provincial Court Act, as the case may be, mutatis mutandis.

3(2.91)Where a person elects pursuant to this section to receive a pension in lieu of a pension and benefits under the Public Service Superannuation Act, any existing liability to the Officer, his spouse, his children or his estate under the Public Service Superannuation Act shall be recognized by paying out of the fund referred to in the Public Service Superannuation Act as the Superannuation Account and into the fund referred to in subsection 15(7) of the Provincial Court Act, to the credit of the Officer, an amount equal to his contributions to the Superannuation Account plus interest thereon less the amount of any benefits received by him from the Superannuation Account.

3(2.92)A payment made in accordance with subsection (2.91)

(a)shall constitute complete satisfaction of the existing liability under the Public Service Superannuation Act to the Officer on whose behalf and on whose credit the payment is made and shall extinguish all rights and claims which the Officer, his spouse, his children or his estate may have to, in and against the Superannuation Account; and

(b)shall not create in or for the Officer on whose behalf and to whose credit the payment is made, or his surviving spouse, his children or his estate, any interest, right or entitlement in addition to those interests, rights or entitlements created by or under the Provincial Court Act.

3(3) Repealed: 1983, c.31, s.2.

3(4) Repealed: 1983, c.31, s.2.

3(5) Repealed: 1983, c.31, s.2.

3(6) Repealed: 1983, c.31, s.2.

3(7)In the event of the inability of the Officer to act due to illness, absence, vacation or any other reason, the Lieutenant-Governor in Council may appoint another person to act on behalf of the Officer during the period he is unable to act and during such period that person has all the powers of the Officer.

3(8) Repealed: 1983, c.31, s.2.

3(9)An Officer may be reappointed.

3(10) Repealed: 1983, c.31, s.2.

1973, c.6, s.3; 1974, c.13(Supp.), s.1; 1978, c.18, s.1.1; 1979, c.20, s.1; 1982, c.23, s.1; 1983, c.31, s.2.

3.1(1)The Lieutenant-Governor in Council, on the recommendation of the Attorney General, may appoint a person as an Officer.

3.1(2)An Officer appointed under subsection (1) has all the powers and duties of an Officer under paragraphs 10(1.1)(b) and (c), sections 11, 12, 13, 14, 15 and 17 and subsection 19(11.1).

3.1(3)A report prepared by an Officer appointed under this section is deemed to be a report of the Officer.

3.1(4)An Officer appointed under subsection (1) shall be paid the remuneration and the allowance for expenses as may be fixed, from time to time, by the Lieutenant-Governor in Council.

1991, c.13, s.2; 2006, c.16, s.64.

4The Lieutenant-Governor in council or a Minister of the Crown may expropriate where he considers it desirable for establishing or carrying out

(a)any work or enterprise that he considers to be in the public interest;

(b)any public purpose, or

(c)any commercial, industrial or utility purpose.

1973, c.6, s.4; 1975, c.21, s.2.

5(1)Any expropriating authority or, with an order in writing from the Officer and subject to his direction including the requiring of security for compensation, any other person may, without the consent of the owner, enter upon any land to ascertain its suitability for the purposes for which its expropriation is required, and may make surveys, take levels and make such borings, sink such trial pits or conduct such other tests as are necessary to ascertain the suitability of the land.

5(2)Where an order of the Officer is required by subsection (1), the Officer may require the applicant to give notice of the application for the order to such persons and in such manner as the Officer directs.

5(3)A person entering upon land pursuant to subsection (1) shall make full compensation for any damages to the land or to other property caused by anything done under that subsection.

5(4)No agent or employee of an expropriating authority that is a municipality shall enter upon land pursuant to subsection (1) unless the entry has been previously authorized by a resolution of the council of the municipality.

5(5)The right of entry conferred by or under subsection (1) shall only be exercised

(a)after the expropriating authority or other person has given, or has made a reasonable effort to give, written notice of the proposed entry to the person in possession of the land, and

(b)at such time as is reasonable, taking into account the needs and objectives of the expropriating authority or other person and the requirements of the person in possession of the land.

1973, c.6, s.5; 1983, c.31, s.3.

6Every expropriating authority seeking to expropriate shall file with the Officer a notice of intention to expropriate setting forth

(a)the name of the expropriating authority,

(b)a description of the land sufficient to identify it,

(c)a general description of the state of the land,

(d)the nature of the interest intended to be expropriated and whether such interest is intended to be subject to any existing interest in the land,

(e)a statement of the purpose for which the expropriation is required, and

(f)a statement that it is intended that the land be expropriated by the expropriating authority,

which shall be accompanied by

(g)a plan of survey or a tentative plan of survey of the land, and

(h)a statement setting out the names of all known owners of the land together with such evidence as is sufficient to satisfy the Officer that reasonable steps have been taken to ascertain the owners of the land.

1973, c.6, s.6; 1975, c.21, s.3; 1983, c.31, s.4.

7Any person, other than an expropriating authority, who requires an expropriation for commercial, industrial or utility purposes may file with the Officer an application for an expropriation by the Lieutenant-Governor in Council setting forth the information stipulated in paragraphs 6(b), (c), (d), (e), (g) and (h).

1973, c.6, s.7; 1975, c.21, s.4; 1983, c.31, s.5.

8(1)Every expropriating authority who files a notice of intention under section 6, and every person who files an application under section 7, shall

(a)cause to be served upon each owner of the land as set out pursuant to paragraph 6(h), a copy of the notice of intention or the application, as the case may be;

(b)cause to be published once in a newspaper having general circulation in the locality in which the land is situated a notice

(i)stating that on a specified date a notice of intention or an application was filed with the Officer,

(ii)describing the land affected by the notice or application sufficiently to identify its location,

(iii)stating that the notice of intention or application and the accompanying plan of survey and statement referred to in section 6 may be examined during normal office hours at the office of the Officer, and that a copy thereof may be obtained for a nominal fee on request directed to the office of the Officer, and

(iv)stating the address and mailing address of the office of the Officer,

and it is not necessary to publish such notice of intention, application, plan of survey or statement;

(c)cause to be registered in the registry office for the county in which the land is situated, for entry in a book kept by the Registrar of Deeds for that purpose and indexed by him with reference to the names of the registered owners of the land, a notice

(i)stating that on a specified date the notice of intention or the application was filed with the Officer, and

(ii)containing the names of all registered owners of the land and a description of the land sufficient to identify it.

8(2)Attached to every copy or notice required by paragraph (1)(a) or (b) to be served or published there shall be a statement, in a form prescribed by the Officer, setting out

(a)where a notice of intention has been filed, that an objection to the proposed expropriation may be made by any owner of the land, including a tenant, or by any person whose land, in the opinion of the Officer, may be injuriously affected by the proposed expropriation;

(b)where an application for an expropriation has been filed, that an objection to the proposed expropriation may be made by any person;

(c)that objections may be made by filing a notice of objection with the Officer;

(d)the address for filing notices of objection with the Officer;

(e)the period established by this Act for the filing of objections;

(f)the form in which a notice of objection shall be made; and

(g)that, subject to this Act, a hearing will be held upon the filing of objections.

8(3)Where the Officer is satisfied that the expropriating authority or the applicant cannot reasonably comply with paragraph (1)(a), the Officer may waive the requirement or may require that notice be given in such other manner as the Officer may direct.

8(4)Every expropriating authority and every applicant shall file with the Officer evidence of compliance with this section in a form prescribed by the Officer.

8(5) Repealed: 1983, c.31, s.6.

1973, c.6, s.8; 1974, c.13(Supp.), s.1.1; 1978, c.18, s.2; 1982, c.23, s.2; 1983, c.31, s.6.

9(1)An objection to a proposed expropriation may be made by

(a)in the case of a notice of intention, any owner of the land to be expropriated or of land that, in the opinion of the Officer, may be injuriously affected by the proposed expropriation, or

(b)in the case of an application for an expropriation, any person,

and such objection may be made by filing a notice of objection with the Officer within thirty days of the date of the registration of a notice in the registry office in accordance with paragraph 8(1)(c).

9(2)A notice of objection shall be in a form prescribed by regulation and shall contain a summary of the reasons for the objection and shall state the nature of the interest of the objector in the matter of the proposed expropriation.

9(3) Repealed: 1983, c.31, s.7.

9(4)The Officer shall forthwith, and not later than the date stipulated for notice in subsection 11(3), serve copies of all notices of objection filed with respect to a proposed expropriation upon the expropriating authority or applicant proposing the expropriation.

1973, c.6, s.9; 1983, c.31, s.7.

10(1)Where a notice of objection is filed with the Officer by a person authorized by this Act to object to a proposed expropriation and has not been withdrawn, the Officer shall, if subsection 8(4) has been complied with and if the Officer is satisfied as to the sufficiency of the information required to be provided by subsection 9(2), arrange for a public hearing to be held within thirty days after the expiration of the time limited for filing a notice of objection in the locality in which the land referred to in the notice of intention or the application is situated.

10(1.1)Where all notices of objections with which the Officer was satisfied in accordance with subsection (1) have been withdrawn after a hearing has been arranged, whether prior to the commencement of the hearing, during its course or upon its completion,

(a)the Officer shall not commence or authorize the commencement of a hearing,

(b)the Officer shall discontinue any hearing that has been commenced, and

(c)subject to subsection (6), the reporting requirements of sections 16 and 17 do not apply.

10(2)The Lieutenant-Governor in Council may, where he considers it in the public interest to do so, file with the Officer an order that a proposed expropriation proceed without a hearing as provided for in subsection (1), and where such an order is made sections 8 and 9 and any other provisions of this Part regulating notice and hearing have no application unless it is otherwise stipulated in the order.

10(3)A copy of the order filed under subsection (2) shall be served by the Officer on each person who has filed a notice of objection.

10(4)Subject to subsection (5), where

(a)no notice of objection with which the Officer is satisfied in accordance with subsection (1) is filed within the time for filing,

(b)an order has been made that an expropriation proceed without a hearing, or

(c)all notices of objection with which the Officer was satisfied in accordance with subsection (1) have since been withdrawn, whether before or after a hearing is arranged, or prior to the commencement of, during the course of or upon the completion of a hearing,

the Officer shall immediately notify the expropriating authority to that effect, and the expropriating authority may confirm its notice of intention in the manner provided in section 19 or may at any time prior to the confirmation of the notice of intention abandon the intention.

10(5)Where, in the circumstances described in subsection (4), the expropriating authority is not the Lieutenant-Governor in Council or a municipality, no notice of intention shall be confirmed without the prior approval of the Lieutenant-Governor in Council, and the Officer shall forward to the Lieutenant-Governor in Council a report setting out

(a)a copy of the notice of intention,

(b)that

(i)no notice of objection to the proposed expropriation has been filed with the Officer,

(ii)all notices of objection with which the Officer was satisfied in accordance with subsection (1) have since been withdrawn, or

(iii)an order has been made authorizing the expropriation to proceed without a hearing,

(c)that the approval of the Lieutenant-Governor in Council is required, and

(d)the latest date at which the notice of intention may be confirmed by the expropriating authority.

10(6)Where no notice of objection to an application for an expropriation pursuant to section 7 is filed with the Officer, or where all notices of objection with which the Officer was satisfied in accordance with subsection (1) have since been withdrawn, the Officer

(a)shall examine the application,

(b)may require the applicant to provide such additional evidence in support of its application as it considers necessary, and

(c)shall report to the Lieutenant-Governor in Council as if a hearing had taken place.

1973, c.6, s.10; 1978, c.18, s.3; 1983, c.31, s.8.

11(1)The Officer shall conduct any hearing under subsection 10(1).

11(2) Repealed: 1983, c.31, s.9.

11(3)The Officer shall serve upon the expropriating authority or the applicant, as the case may be, and upon all persons filing notices of objection in accordance with this Act, not less than twenty-one days notice of the time and place set for the hearing.

1973, c.6, s.11; 1974, c.13(Supp.), s.1.2; 1983, c.31, s.9.

12(1)At least fourteen days before the date fixed for the hearing, the expropriating authority or applicant, as the case may be, shall serve upon each person who has filed a notice of objection a notice indicating the grounds on which it intends to rely at the hearing and shall make available for inspection by such persons any documents, including maps and plans, that the expropriating authority or applicant intends to use at the hearing.

12(1.1)The expropriating authority or applicant shall file with the Officer, at least fourteen days before the date fixed for the hearing, a copy of the notice referred to in subsection (1).

12(2)Where the Officer has not complied with the time periods set out in subsection 9(4) or subsection 11(3), or where the expropriating authority or applicant has not complied with subsection (1), the Officer may postpone the date for the hearing in order to allow compliance with those provisions.

1973, c.6, s.12; 1978, c.18, s.4; 1983, c.31, s.10; 1991, c.13, s.3.

13The Officer may order the consolidation of any proceedings where he is of the opinion that it is convenient to do so and that it will not prejudice the opportunity of an objecting party to present his objection to a proposed expropriation.

1973, c.6, s.13; 1983, c.31, s.11.

14(1)The Officer may at any time allow an amendment of a notice of intention or an application in order to modify or make substitution for the land proposed to be expropriated, in which case he shall give directions as to the manner in which notice of the amendment shall be given to the parties to the proceedings, to any affected owner who is not a party to the proceedings and to the public, and as to the time within which notices of objection to the amendment may be filed with the Officer.

14(2)Where the Officer allows an amendment of a notice of intention or an application he shall order the adjournment of any proceedings then under way to enable the expropriating authority or the applicant, as the case may be, to file any additional documentation required by the Officer and to comply with section 12, and to enable notices of objection to be filed with respect to the amended notice of intention or application within such time as is prescribed in the notice given under subsection (1).

1973, c.6, s.14; 1983, c.31, s.12.

15(1)The expropriating authority or the applicant, as the case may be, shall at the hearing present in full its case in support of the proposed expropriation.

15(2)Each person filing a notice of objection to a proposed expropriation shall be provided with an opportunity to present evidence and argument either personally or by his counsel or agent

(a)as of right, where the person is an owner of land proposed to be expropriated or of land that may, in the opinion of the Officer, be injuriously affected by the proposed expropriation, or

(b)with the permission of the Officer, in every other case, to be granted where the notice of objection discloses an interest in the matter of the expropriation that, in the opinion of the Officer, would be materially affected by the expropriation.

15(3)The Officer may make rules of procedure that he considers appropriate to a hearing under this Part, and in no case is the Officer bound to follow rules of evidence or procedure applicable in judicial proceedings.

1973, c.6, s.15; 1983, c.31, s.13.

16 Repealed: 1983, c.31, s.14.

1973, c.6, s.16; 1983, c.31, s.14.

17(1)The Officer in conducting a hearing shall consider all evidence presented and representations made to him in support of and in objection to the proposed expropriation and within thirty days after the hearing shall submit a report

(a)where the expropriating authority is a municipality, to the council thereof, or

(b)where the expropriating authority is other than a municipality or where an application has been made under section 7, to the Lieutenant-Governor in Council,

and at the same time shall submit a copy of the report to the expropriating authority or the applicant and to each person who made representations at the hearing.

17(2)The report submitted under subsection (1) shall contain a summary of the evidence and arguments presented at the hearing and any finding of fact by the Officer and shall state the opinion of the Officer as to whether the proposed expropriation

(a)is reasonably necessary to accomplish the objectives of the expropriating authority or applicant,

(b)is fair, balancing the objectives of the expropriating authority or applicant against the interests of the owner that would be extinguished by the expropriation, and

(c)in the case of an application made under section 7, is consistent with the public interest.

17(3)Where the report is in respect of a proposed expropriation by an expropriating authority other than the Lieutenant-Governor in Council or a municipality, the Officer shall include with the report

(a)a copy of the notice of intention,

(b)notification that the approval of the Lieutenant-Governor in Council is required, and

(c)notification of the latest date at which the notice of intention may be confirmed by the expropriating authority.

17(4)Where the report is in respect of an application under section 7 for an expropriation by the Lieutenant-Governor in Council, the Officer shall include with the report

(a)a copy of the application, and

(b)notification of the latest date at which the expropriation may be effected.

17(5)In a report submitted in accordance with subsection (1), the Officer may direct an expropriating authority to pay to an owner of land who has appeared before the Officer on a hearing of objection an amount not to exceed two hundred dollars in respect of his costs and expenses in appearing before the Officer and the expropriating authority shall pay such amount to that person.

17(6)Notwithstanding that the Officer has submitted a report in accordance with subsection (1), an expropriating authority or an applicant may apply to the Officer to amend its notice of intention or application in accordance with section 14, and the Officer shall continue to exercise jurisdiction with respect to a notice of intention until its confirmation or abandonment, and with respect to an application until an expropriation is effected pursuant thereto or the application is abandoned, and where hearings are held with respect to an application to amend a notice of intention or an application the Officer shall submit a report with respect thereto in accordance with the provisions of this section relating to the submission of reports by the Officer.

1973, c.6, s.17; 1983, c.31, s.15.

18(1)The Lieutenant-Governor in Council or the council of a municipality may, after considering the report of the Officer, confirm its notice of intention in the manner provided in section 19, with such modifications as are considered appropriate, or may at any time prior to the confirmation of its notice of intention, abandon that intention.

18(2)The Lieutenant-Governor in Council may, after considering the report of the Officer, make an order approving a proposed expropriation by an expropriating authority other than the Lieutenant-Governor in Council or a municipality, with such modifications as he considers appropriate.

18(3)An expropriating authority referred to in subsection (2) may, after considering the report of the Officer and with the approval of the Lieutenant-Governor in Council pursuant to subsection (2), confirm its notice of intention in the manner provided in section 19, with such modifications as it considers appropriate, or may at any time prior to the confirmation of the notice of intention, abandon that intention.

18(4)In respect of an application made under section 7, the Lieutenant-Governor in Council may, after considering the report of the Officer, expropriate in the manner provided in section 19, with such modifications as he considers appropriate, on condition that the applicant indemnify the Crown with respect to all expenses incurred in the expropriation, including compensation and costs, and comply with such terms and conditions as the Lieutenant-Governor in Council imposes.

18(5)An applicant on whose behalf the Lieutenant-Governor in Council proposes to expropriate may be required to deposit with the Minister of Finance security for payment of expenses incurred in the expropriation, including compensation and costs, as a condition precedent to the expropriation.

18(6)The Lieutenant-Governor in Council may convey land expropriated pursuant to an application made under section 7 to the applicant upon such terms and conditions as the Lieutenant-Governor in Council determines.

18(7)No modifications in a confirmation of a notice of intention, or in an expropriation pursuant to an application made under section 7, shall be made so as to affect the land of an owner who has not been given notice of the proposed expropriation in accordance with this Act.

1973, c.6, s.18; 1983, c.31, s.16; 1987, c.6, s.26.

19(1)An expropriating authority may confirm its notice of intention, and the Lieutenant-Governor in Council may expropriate on behalf of an applicant, by registering in the registry office for the county in which the land is situated a notice of expropriation

(a)where the expropriating authority is the Lieutenant-Governor in Council, signed by the Clerk of the Executive Council,

(b)where the expropriating authority is a municipality, signed by the clerk of the municipality, or

(c)where the expropriating authority is other than the Lieutenant-Governor in Council or a municipality, signed by the appropriate signing officer of the expropriating authority,

which notice shall contain a description of the land sufficient to identify it and the names of all registered owners of the land, and shall be accompanied by a plan of the land filed in accordance with subsection 50(4) of the Registry Act.

19(2)Where the expropriating authority is the Lieutenant-Governor in Council, or where the confirmation of a notice of intention requires the approval of the Lieutenant-Governor in Council, there shall be attached to the notice of expropriation registered under subsection (1) the order in council under which the expropriation was authorized or the approval was given, or a copy thereof certified by the Clerk of the Executive Council.

19(3)Where the expropriating authority is a municipality, there shall be attached to the notice of expropriation registered under subsection (1) the resolution of the council of the municipality authorizing the expropriation, or a copy thereof certified by the clerk of the municipality.

19(4)Where a notice of expropriation registered under subsection (1) purports to have been signed by the Clerk of the Executive Council, the clerk of a municipality or the proper signing officer of an expropriating authority, it shall be presumed to have been signed by such person without proof of the signature or official character of the person appearing to have signed it, and where an order or a resolution referred to in subsection (2) or (3) purports to have been made by the Lieutenant-Governor in Council or by a municipality, it shall be presumed to have been made by the Lieutenant-Governor in Council or by the municipality, as the case may be, without proof of the validity of the making thereof and without proof of the signature or official character of the person appearing to have certified any copy thereof as Clerk of the Executive Council or clerk of a municipality.

19(5)Where a notice of expropriation has been registered, the expropriating authority shall serve a copy thereof upon each known owner, but a failure to comply with this subsection does not invalidate the expropriation.

19(6)In the case of an omission, mis-statement or erroneous description in a notice of expropriation, an order, a resolution or a plan registered or filed in accordance with this section, the expropriating authority may register or file an amended notice, order, resolution or plan, which notice, order, resolution or plan shall be deemed to be a substitute for the original notice, order, resolution or plan and shall have the same force and effect as if registered or filed at the same time as the notice, order, resolution or plan for which it is substituted.

19(7)Where the land is required for a limited time only or only a limited estate, right or interest therein is required, the notice registered under this section shall indicate by appropriate words that the land is taken for such limited time only or that only such limited estate, right or interest therein is taken, and the expropriating authority shall be deemed to have abandoned the intention to expropriate any other or greater interest.

19(8)The land described in a notice of expropriation is expropriated upon registration of the notice of expropriation in accordance with this section, and thereupon vests in the expropriating authority, and all right and title of any other person in such land ceases except to the extent that a possessory right is conferred upon the person by this Act.

19(8.1)Where under subsection (8) the expropriating authority is a Minister of the Crown, the land described in the notice of expropriation is expropriated upon registration of the notice of expropriation in accordance with this section, and thereupon vests in the Crown to be under the administration and control of that Minister, and all right and title of any other person in such land ceases except to the extent that a possessory right is conferred upon the person by this Act.

19(9)Any owner of land expropriated or injuriously affected by an expropriation who questions the validity of an expropriation by reason of a failure to comply with any step preliminary to the registration of the notice of expropriation required by this Part to be performed, or with the requirements of this Part as to registration of the notice of expropriation, may, within thirty days after the registration of the notice of expropriation, apply to the Court for an order quashing the notice of expropriation.

19(10)Except as is provided in subsection (9), no action or proceeding shall be taken in any court to question the validity of, and no question shall be entertained in any proceeding before any court respecting the validity of, an expropriation effected under this Part by reason of a failure to comply with any step preliminary to the registration of the notice of expropriation required by this Part to be performed, or with the requirements of this Part as to registration of the notice of expropriation, and all steps preliminary to the registration of the notice of expropriation required by this Part to be performed shall be deemed to have been performed and the notice of expropriation shall be deemed to have been validly registered.

19(11)Where, after the expiration of one hundred and eighty days from the day a notice of intention or an application for an expropriation was filed with the Officer, a notice of expropriation in respect thereof has not been registered, the expropriating authority or the applicant, as the case may be, shall be deemed to have abandoned its intention to expropriate or its application for an expropriation.

19(11.1)The one hundred and eighty day period provided for in subsection (11) is extended by adding thereto the number of days by which the report of the Officer is delayed beyond the thirty day period provided for in section 17 for delivery of such report.

19(12)Where an application is made to the Officer within the period of one hundred and eighty days referred to in subsection (11), or within any extension thereof ordered under this subsection, the Officer may, after notice has been given to such persons and in such manner as the Officer directs, by order extend such period for further periods not exceeding sixty days each where the Officer considers it to be in the public interest to do so, but no such order is valid unless the order, or a copy thereof certified by the Officer, is filed in the Registry Office for the county in which the land is situated before the expiration of the period of one hundred and eighty days or any extension thereof in respect of which an order has been filed.

19(13)The Registrar of Deeds shall append a notice filed under subsection (12) to the notice filed in accordance with paragraph 8(1)(c).

19(14)Where an intention to expropriate or an application for an expropriation is abandoned, an owner shall be compensated by the expropriating authority or the applicant for the reasonable legal, appraisal and other costs incurred by the owner as a consequence of the initiation of expropriation proceedings.

1973, c.6, s.19; 1975, c.21, s.5; 1983, c.31, s.17; 1987, c.6, s.26; 1991, c.13, s.4.

20(1)Where an expropriating authority is at any time in doubt as to the persons who are owners of the land expropriated or to be expropriated, it may apply to the Court for a judgment respecting the state of the title to the land or any part thereof at a date specified in the application.

20(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 to be served with a 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 applicant, and

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

20(3)After the hearing the Court shall either adjudge for the purposes of this Act who is an owner of the land referred to in the application and the nature and extent of the interest of each owner, or direct an issue or issues to be tried for the purpose of enabling the Court to give judgment in the matter.

20(4)Subject to variation on appeal, the judgment of the Court shall determine who is the owner of land referred to in the application at the date specified therein.

20(5)Where an owner of land is unknown or is under a disability so as to prevent him from representing himself, the Court may, upon application and after due notice to persons interested, appoint a person to represent the owner for any of the purposes of this Act, and any action of a person so appointed is binding on the person he represents.

20(6)Except where substituted service is otherwise provided for in this Act, the Court may, upon application by any person required by this Act to serve any notice or other document upon any person, order substituted service in respect thereof.

1973, c.6, s.20.

21(1)Any expropriating authority or, with an order in writing from the Officer and subject to his direction, any other person, may, without the consent of the owner, enter upon land for the purpose of viewing it to appraise its value for purposes of expropriation.

21(2)Where an order of the Officer is required by subsection (1), the Officer may require the applicant to give notice of the application for the order to such persons and in such manner as the Officer directs.

21(3)The right of entry conferred by or under subsection (1) shall only be exercised

(a)after the expropriating authority or other person has given, or has made a reasonable effort to give, written notice of the proposed entry to the person in possession of the land, and

(b)at such time as is reasonable, taking into account the needs and objectives of the expropriating authority or other person and the requirements of the person in possession of the land.

1973, c.6, s.21; 1983, c.31, s.18.

22(1)An expropriating authority in whom title to land has vested under subsection 19(8) or an expropriating authority in whom the administration and control of land has vested under subsection 19(8.1) may take physical possession of or make use of the land

(a)as of the date of registration of the notice of expropriation, if at that time no owner is in occupation of the land,

(b)at such time, if any, after the registration of the notice of expropriation as physical possession or use of the land is voluntarily given up to the expropriating authority by all owners in occupation of the land, or

(c)subject of section 37, at such date as is specified in a notice of possession which the expropriating authority may serve upon each owner in occupation of the land at the date of registration of the notice of expropriation, but subject to subsections (2) and (3), the date shall not be sooner than ninety days after the date of registration of the notice of expropriation.

22(2)A registered owner or an expropriating authority may, upon such notice as the Court directs, apply to the Court for an adjustment of the date for possession specified in the notice of possession, and the Court, if it considers that the application should be granted, may order that the date for possession be on such earlier or later date as it may specify in the order.

22(3)Where the Lieutenant-Governor in Council is of the opinion that the physical possession or use of any land expropriated by an expropriating authority is urgently required in the public interest, he may, notwithstanding subsections (1) and (2) and subsection 37(1), by order authorize the expropriating authority to take physical possession of the land or to use the land to the extent specified in the order and as of the date therein specified.

22(4)Where an owner remains in occupation of land after title therein has vested in the expropriating authority under subsection 19(8) or the administration and control thereof has vested in the expropriating authority under subsection 19(8.1) he shall be deemed to be a tenant of the expropriating authority for such period as he remains or is entitled to remain in occupation pursuant to subsection (1).

1973, c.6, s.22; 1975, c.21, s.6.

23(1)Where any person resists or opposes an expropriating authority or other person authorized under this Act to enter upon, use or take possession of land, the expropriating authority or other person may apply ex parte to the Court for a warrant directing the sheriff to take such steps as are necessary to enable the expropriating authority or other person to enter upon, use or take possession of the land.

23(2)The Court shall, in writing, appoint a time and place for the hearing of the application and may direct that a copy of the application be served on such person or persons and in such manner as it prescribes.

23(3)The Court shall hold a hearing into the application and, upon proof of the resistance or opposition, or threatened resistance or opposition, may issue a warrant directing the sheriff to take such steps as are necessary to enable the expropriating authority or other person to enter upon, use or take possession of the land.

23(4)The sheriff shall forthwith execute the warrant and make a return of the execution thereof to the Court.

1973, c.6, s.23.

24(1)Where at any time after a notice of expropriation has been registered, but before expropriation proceedings are completed, an expropriating authority determines that all or part of the land is not needed for the purposes for which it was expropriated or that a more limited estate or interest therein only is required, the expropriating authority may serve a notice of intention to abandon upon each known owner who may, by election in writing,

(a)take the land back, in which case he is entitled to reasonable legal, appraisal and other costs and consequential damages suffered by him, or

(b)require the expropriating authority to retain the land,

and where the election is not made within thirty days of the service of the notice of intention to abandon, he shall be deemed to have elected to take the land back.

24(2)For the purposes of subsection (1), expropriation proceedings are completed where

(a)all compensation proceedings in respect of land described in the notice of expropriation are completed, including appeals,

(b)all compensation has been paid in full, and

(c)physical possession of all lands described in the notice of expropriation has been given up to the expropriating authority.

24(3)Where all the owners upon whom a notice of intention to abandon has been served elect to take the land back, the expropriating authority may register in the appropriate registry office a declaration of abandonment, executed in the manner required for a notice of expropriation and describing the land or part thereof that is abandoned by the expropriating authority and the land or part thereof that is retained, and shall serve a copy thereof upon each owner.

24(4)Upon registration of the declaration of abandonment, the land declared to be abandoned revests in the person from whom it was taken or in those entitled to claim under him, and every interest held therein by that person prior to the expropriation is restored as if the expropriation had not occurred.

24(5)Where a person who was an owner at the time of the expropriation

(a)holding the whole of the freehold interest, subject to a more limited interest in another owner,

(b)holding the whole of the equitable title to land subject to a mortgage, or

(c)holding under an agreement of sale and purchase the whole of the equitable interest in the land,

elects under subsection (1) to take back the land, and the owner of another interest in the land elects to require the expropriating authority to retain the land, the expropriating authority shall, upon payment to the expropriating authority by the owner electing to take back the land of an amount equal to the amount paid or payable under paragraph 37(1)(b) or any other provision of this Act in respect of all other interests in the land, reconvey to that owner his interest in the land unencumbered by any other interest in respect of which the owner has paid the expropriating authority.

24(6)Where a declaration of abandonment is registered under subsection (3), or a conveyance is made under subsection (5), each owner who has elected to take back the land shall return to the expropriating authority all sums received by him as compensation, less such amount by way of set-off as he is entitled to by way of compensation or damages referred to in paragraph (1)(a).

1973, c.6, s.24; 1987, c.6, s.26.

PART II

COMPENSATION

25Where land is expropriated or injuriously affected, or where property other than land is taken, interfered with or injured under authority of a statute that requires compensation to be paid, the statutory authority shall pay each owner compensation determined in accordance with this Part.

1973, c.6, s.25.

26 Repealed: 1983, c.31, s.19.

1973, c.6, s.26; 1974, c.13(Supp.), s.2; 1977, c.20, s.1; 1979, c.20, s.1; 1982, c.3, s.25; 1982, c.23, s.3; 1983, c.31, s.19.

27 Repealed: 1983, c.31, s.19.

1973, c.6, s.27; 1974, c.13(Supp.), s.3; 1983, c.31, s.19.

28 Repealed: 1983, c.31, s.19.

1973, c.6, s.28; 1983, c.31, s.19.

29 Repealed: 1983, c.31, s.19.

1973, c.6, s.29; 1983, c.31, s.19.

30(1)The Court has exclusive jurisdiction

(a)to hear and determine all questions of compensation required to be paid under this Act or arising out of an expropriation or injurious affection to which this Act applies;

(b)to hear and determine all questions of compensation arising under any other Act under which a statutory authority is required to pay compensation to an owner in respect of a taking of, an interference with or an injury to property as authorized by that Act;

(d) Repealed: 1983, c.31, s.20.

30(2)Subject to the other provisions of this section, to section 31 and to such procedural requirements as are established by regulation, the jurisdiction of the Court may be invoked by any party to a dispute by filing with the Court a notice of arbitration setting out such information as the Court directs and by serving a copy thereof upon the other party.

1973, c.6, s.30; 1983, c.31, s.20.

31(1)Where a statutory authority and an owner have not agreed upon the compensation payable under this Act in respect of an expropriation or injurious affection authorized by this Act, and, in the case of expropriation, section 37 has been complied with or the time for compliance therewith by the statutory authority has expired, or, in the case of injurious affection, section 47 has been complied with, either the statutory authority or the owner may invoke the jurisdiction of the Court to settle any dispute between them by serving upon the other of them and the Court a notice of arbitration.

31(2)Where a statutory authority and an owner have not agreed upon the compensation payable in respect of a taking of, an interference with or an injury to property authorized under any other Act and all procedures provided in that other Act with respect to the making of an offer or to negotiation have been exhausted or the time therefor has expired, either the statutory authority or the owner may invoke the jurisdiction of the Court to settle any dispute between them by serving upon the other of them and the Court a notice of arbitration.

31(3)A notice of arbitration referred to in subsections (1) and (2) shall state

(a)the name of the owner and the statutory authority required to pay compensation;

(b)the Act under which the taking, interference or injury was occasioned and the compensation authorized;

(c)a description of the property;

(d)the date on which the property was taken, interfered with or injured;

(e)whether an offer has been made by the statutory authority required to make compensation and the amount and date of the offer;

(f)the amount claimed by the owner;

(g)the amount that the statutory authority is prepared to pay; and

(h)any other facts material to the determination of the matter in dispute before the Court.

31(4)The Court may consolidate any proceedings where it is of the opinion that it is convenient to do so and that it will not prejudice the opportunity of a party to present his case before the Court.

1973, c.6, s.31; 1983, c.31, s.21.

32The Rules of Court under the Judicature Act apply in all proceedings before the Court under this Act subject to procedural requirements prescribed by section 31 and the regulations.

1978, c.18, s.5; 1979, c.41, s.48; 1983, c.31, s.22.

33 Repealed: 1983, c.31, s.23.

1973, c.6, s.33; 1983, c.31, s.23.

34 Repealed: 1983, c.31, s.23.

1973, c.6, s.34; 1975, c.21, s.7; 1983, c.31, s.23.

35 Repealed: 1983, c.31, s.23.

1973, c.6, s.35; 1979, c.41, s.48; 1983, c.31, s.23.

36(1)Where land is expropriated or injuriously affected by a statutory authority, the statutory authority and the owner may agree, before the compensation is agreed upon or determined, that the statutory authority will grant to the owner such other land as is specified in the agreement, and the value of such grant, together with the value of any accommodation works constructed or undertaken to be constructed by the statutory authority for the benefit of the remaining land of the owner, shall be taken into account in determining the compensation payable to the owner.

36(2)Where a statutory authority has not carried out an undertaking to construct accommodation works at the time compensation is agreed upon or is determined by the Court, the owner may apply to the Court at any time to request the Court to fix a date for the completion of the accommodation works undertaken.

36(3)Where a statutory authority has not on the date fixed by the Court completed the accommodation works undertaken by it, the owner may apply to the Court for an additional amount of compensation, which the Court may award.

1973, c.6, s.36; 1983, c.31, s.24.

37(1)Where no agreement as to compensation has been made with the owner, the expropriating authority shall, within ninety days after the registration of the notice of expropriation under section 19,

(a)serve upon each known owner of the land an offer of an amount in full compensation for his interest, excepting compensation for business loss for which the determination is postponed under section 45;

(b)tender to each known owner the immediate payment of one hundred per cent of the amount of the market value of his interest as estimated by the expropriating authority, or, in the case of the interest of a security holder or a vendor under an agreement for sale, the value of that interest as estimated by the expropriating authority, and the payment and receipt of that sum is without prejudice to rights conferred by this Act in respect of the determination of compensation and is subject to adjustment in accordance with any compensation that may subsequently be determined in accordance with this Act or agreed upon; and

(c)serve upon each known owner a copy of any appraisal report upon which the offer of compensation is based;

and except as otherwise provided the expropriating authority shall not take possession of land occupied by an owner who has not been made an offer and tender as required by this subsection.

37(2)The expropriating authority may, within the period mentioned in subsection (1) and before taking possession of the land, upon giving at least two days notice to the owner, apply to the Court for an order extending the time referred to in subsection (1), and the Court may in its order authorize the expropriating authority to take possession of the land before the expiration of the extended time upon such conditions as are specified in the order.

37(3)When an owner is not made an offer and tender under subsection (1) within the time limited therein or by order of the Court under subsection (2), the expropriation is not invalidated but interest upon the unpaid portion of any compensation shall, in addition to interest otherwise payable under this Act, be paid from the expiration of the time limited therefor until the date upon which the tender of the amount of the offer is made.

37(4)Where, pursuant to an order of the Lieutenant-Governor in Council under subsection 22(3), an owner in occupation of land that has been expropriated is required to surrender physical possession of the land, totally or to such extent as is specified in the order, the expropriating authority shall pay the owner additional compensation equal to five per cent of the value of that portion of the land of which the owner is required to surrender physical possession.

1973, c.6, s.37.

38(1)Where the land of an owner is expropriated, the compensation to the owner shall be based upon

(a)the market value of the land,

(b)damages attributable to disturbance,

(c)damages for injurious affection,

(d)any special economic advantage arising out of his occupation of the land that is not reflected in the market value of the land,

but where the market value is based upon a use of the land other than the existing use, compensation under paragraphs (a) and (b) shall not exceed the greater of

(e)the amount based upon the existing use to which the land is being put and disturbance damages, or

(f)the amount based upon the highest and best use to which the land may be put,

and no compensation shall be awarded under paragraph (d).

38(2)Where property other than land is taken, interfered with or injured, in the absence of a specific direction in the statute authorizing it, compensation shall be based upon the market value of the property, or any reduction therein, and damages for disturbance.

38(3)No compensation shall be paid in respect of improvements made to land by an owner after a copy of a notice of intention to expropriate or an application for an expropriation is served upon the owner pursuant to this Act.

1973, c.6, s.38; 1987, c.6, s.26.

39(1)The market value of land expropriated is the amount that would have been paid for the land if it had been sold on the date of expropriation in the open market by a willing seller to a willing buyer.

39(2)Where the land expropriated had a building erected thereon that was used for purposes of a school, hospital facility or religious or charitable institution, or for similar purposes, and

(a)the use for that purpose would have continued but for the expropriation,

(b)there is no general demand or market for the land and building for that purpose, and

(c)the owner intends in good faith to relocate in similar premises,

the market value shall, at the option of the owner, be deemed to be the reasonable cost of equivalent reinstatement less the amount by which the owner will have improved or may reasonably be expected to improve his position through relocation on other premises.

39(3)Where only part of the land of an owner is taken and such part is of a size, shape or nature for which there is no general demand or market, the market value and the injurious affection caused by the taking may be determined by determining the market value of the whole of the owner’s land and deducting therefrom the market value of the owner’s land after the taking.

39(4)In determining the market value of the land, no account shall be taken of

(a)any anticipated or actual use to which the expropriating authority will put the land;

(b)any increase or decrease in the value of the land resulting from the imminence of the development in respect of which the expropriation is made or from any imminent prospect of expropriation; or

(c)any increase in the value of the land resulting from the land being put to a use that could be restrained by any court or is contrary to law or is detrimental to the health of the occupants of the land or to the public health.

1973, c.6, s.39; 1992, c.52, s.10.

40Where the Court has fixed the market value of land used for residential purposes and is of the opinion that

(a)the amount fixed is insufficient to enable the owner to relocate his residence in accommodation that is at least equivalent to the accommodation expropriated, and

(b)a special hardship will be imposed upon the owner in obtaining accommodation suitable to his needs,

upon application therefor, the Court may award the owner such additional amount of compensation as, in the opinion of the Court, is necessary to relocate his residence in accommodation that is at least equivalent to the accommodation expropriated.

1973, c.6, s.40; 1983, c.31, s.25.

41With the exception of the interest of a security holder or a vendor under an agreement for sale, where there are more separate interests than one in land, the market value of each such separate interest shall be valued separately.

1973, c.6, s.41.

42(1)In this section and in section 43, “bonus” means the amount by which the amount secured under a mortgage exceeds the amount actually advanced.

42(2)Where land is subject to a security interest,

(a)the value of the interest of the security holder shall be determined in accordance with this section and section 43 and not otherwise, and

(b)the market value of the land shall be determined without regard to the interest of the security holder, and the amount of such market value plus any damages for injurious affection shall stand in the place of the land for the purposes of the security.

42(3)Security holders shall be paid the amount of principal and interest outstanding against the security out of the market value of the land and any damages for injurious affection payable in respect of the land subject to the security, in accordance with their priorities, whether or not such principal and interest is due, and subject to subsections (4) and (5).

42(4)Where the land is subject to a mortgage and the amount payable to the mortgagee under subsection (3) is insufficient to satisfy the mortgage in full,

(a)where the mortgage is a purchase-money mortgage, the mortgage shall be deemed to be fully paid, satisfied and discharged for all purposes; and

(b)where the mortgage is not a purchase-money mortgage and includes a bonus,

(i)the amount by which the amount payable to the mortgagee under subsection (3) is insufficient to pay the amount remaining unpaid under the mortgage, or

(ii)the amount of the bonus,

whichever is the lesser, shall be deemed to be fully paid and satisfied for all purposes.

42(5)For the purposes of subsection (4), “purchase-money mortgage” means a mortgage under which the vendor of land takes land sold to a purchaser as security for an obligation by the purchaser to pay to the vendor a sum on account of the purchase price of the land.

42(6)No amount shall be paid in respect of a bonus until all security holders have been paid all amounts payable other than any bonus.

42(7)Subject to subsection (8), where land held as security is expropriated in part or is injuriously affected a security holder is entitled to be paid, to the extent possible in accordance with his priority, out of the market value portion of the compensation and any damages for injurious affection therefor, as the case may be, a sum that is in the same ratio to such portion of the compensation and damages as the balance outstanding on the security at the date of the expropriation or injurious affection is to the market value of the entire land, but the sum so determined shall be reduced by the amount of any payments made to the security holder by the owner after the date of expropriation or injurious affection.

42(8)Where the parties to a security instrument have agreed that, in the event of an expropriation of or injurious affection to part of the land subject to the instrument, compensation in respect of that land shall be received and dealt with by the parties or any one of them in a manner set out in the instrument, compensation in respect of that land that the parties to the instrument are entitled to under this Act shall be paid in the manner set out in the instrument, and payment by a statutory authority in conformity therewith discharges the obligation of the statutory authority to pay compensation to the parties to the instrument in respect of the expropriation of or injurious affection to that land.

1973, c.6, s.42.

43Where a statutory authority prepays a mortgage in whole or in part, the statutory authority

(a)shall pay to the mortgagee an amount in respect of the prepayment amounting to

(i)three months’ interest on the amount of principal prepaid at the rate of six per cent a year, or

(ii)the value of any notice or bonus for prepayment provided for in the mortgage,

whichever is the lesser;

(b)shall pay to the mortgagee where,

(i)the prevailing interest rate for an equivalent investment is lower than the rate under the mortgage, and

(ii)there is no provision in the mortgage permitting prepayment at the date of the expropriation,

an amount to compensate for the difference in the interest rates for the period for which the amount of principal prepaid has been advanced, not to exceed five years; and

(c)shall pay to the mortgagor whose interest is expropriated an amount to compensate for any loss incurred by reason of a difference in the interest rates during the period for which the payment of principal provided for in the mortgage has been advanced, but such difference shall not be calculated on a new interest rate any greater than the prevailing interest rate for an equivalent mortgage.

1973, c.6, s.43; 1983, c.31, s.26.

44(1)An expropriating authority shall pay to an owner other than a tenant, in respect of disturbance, such reasonable costs as are the natural and reasonable consequences of the expropriation, including,

(a)where the premises taken include the owner’s residence,

(i)an allowance to compensate for inconvenience and the cost of finding another residence of five per cent of the compensation payable in respect of the market value of that part of the land expropriated that is used by the owner for residential purposes, if that part was not being offered for sale on the date of the expropriation, and

(ii)an allowance for improvements the value of which is not reflected in the market value of the land;

(b)where the premises taken do not include the owner’s residence, the owner’s reasonable costs of finding premises to replace those expropriated, if the land was not being offered for sale on the date of expropriation; and

(c)reasonable relocation costs, including

(i)moving costs, and

(ii)legal and survey costs and other non-recoverable expenditures incurred in acquiring other premises.

44(2)An expropriating authority shall pay to a tenant occupying expropriated land in respect of disturbance so much of the cost referred to in subsection (1) 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.

1973, c.6, s.44.

45Where a business is located on the land expropriated, disturbance damages include damages

(a)for business loss resulting from the relocation of the business made necessary by the expropriation, and unless the owner and the expropriating authority otherwise agree, the business loss shall not be determined until the business is relocated and has been in operation for nine months, or until a two year period has elapsed, whichever occurs first; or

(b)where the Court is of the opinion that it is not feasible for the owner to relocate his business or a part thereof, for business loss resulting from the cessation of the whole or part of the business made necessary by the expropriation, but compensation shall not be awarded under this clause where the owner of the business is awarded compensation for the land upon which the business was located on the basis of a use other than the existing use to which the land was being put.

1973, c.6, s.45; 1983, c.31, s.27.

46A statutory authority shall compensate the owner of land for loss or damage caused by injurious affection.

1973, c.6, s.46.

47(1)Subject to subsection (2), a claim for compensation for injurious affection shall be made by the person suffering the damage or loss in writing with particulars of the claim within one year after the damage was sustained or after it became known to him, and, if not so made, the right to compensation is forever barred.

47(2)Where the person who is injuriously affected is a minor, a mental incompetent or a person incapable of managing his affairs, his claim for compensation, if not made on his behalf within the period stipulated in subsection (1), shall be made within one year after he ceases to be under the disability or, in the case of his death while under the disability, within one year after his death, and if not so made the right to compensation is forever barred.

1973, c.6, s.47.

48The value of any advantage to the land or remaining land of an owner derived from any work for which land was expropriated or by which land was injuriously affected shall be set off only against the amount of the damages for injurious affection to the owner’s land or remaining land.

1973, c.6, s.48.

49(1)Subject to subsection (2), where only part of the interest of a lessee is expropriated, the lessee’s obligation to pay rent under the lease shall be abated pro tanto.

49(2)Where all the interest of a lessee in land is expropriated or where part of the lessee’s interest is expropriated and the expropriation renders the remaining part of the lessee’s interest unfit for the purposes of the lease, the lease shall be deemed to be frustrated from the date of the expropriation.

1973, c.6, s.49.

50(1)Subject to subsection 37(3), the owner of land expropriated is entitled to be paid interest at the rate of six per cent a year

(a)on the portion of the compensation payable and outstanding from time to time in respect of the market value of his interest in the land, and any special economic advantage not reflected in the market value, calculated from the date the expropriating authority took possession of the land, except in the case of an owner in occupation of the land in which case interest is to be calculated from the date the owner ceased to reside on or make productive use of the land;

(b)on the portion of the compensation payable and outstanding from time to time in respect of damages for injurious affection or for disturbance, calculated from the date any such damages were incurred; and

(c)on the portion of the compensation payable and outstanding from time to time in respect of sections 42 and 43, calculated from the date of expropriation.

50(2)Subject to subsection (3), where the Court is of the opinion that any delay in determining the compensation is attributable in whole or in part to the owner, it may refuse to allow him interest for the whole or any part of the time for which he might otherwise be entitled to interest, or may allow interest at such rate less than six per cent a year as appears reasonable.

50(3)Interest to which an owner is entitled under subsection (1) shall not be reduced for the reason only that the owner did not accept the offer made by the expropriating authority, notwithstanding that the compensation as finally determined is less than the offer.

50(4)Where the Court is of the opinion that any delay in determining compensation is attributable in whole or in part to the expropriating authority, the Court may order the expropriating authority to pay to the owner interest under subsection (1) at a rate exceeding six per cent a year but not exceeding twelve per cent a year.

50(5)The Lieutenant-Governor in Council may from time to time establish a rate of interest, in excess of six per cent a year, in place of the rate of six per cent a year referred to in this section and in such case any reference to six per cent in this section shall be read as a reference to the rate established by the Lieutenant-Governor in Council.

1973, c.6, s.50; 1974, c.13(Supp.), s.4; 1983, c.31, s.28.

51(1)Where an owner is awarded as compensation an amount less than the amount tendered by an expropriating authority and accepted by him, he shall repay to the expropriating authority an amount by which the amount tendered by the expropriating authority exceeds the amount of compensation and costs awarded by the Court.

51(2)Where an owner does not repay the amount referred to in subsection (1) within thirty days after the date of the award by the Court or within such period as is agreed to by the expropriating authority, he shall be liable to pay interest thereon at the rate of ten per cent per annum, calculated from the date of the award.

1973, c.6, s.51; 1983, c.31, s.29.

52(1)The Court shall award costs on the basis of the following rules, namely:

(a)where the compensation awarded by the Court exceeds the amount offered by the statutory authority, the statutory authority shall pay the legal, appraisal and other costs reasonably incurred by the owner in asserting his claim to compensation, and

(b)where the compensation awarded by the Court does not exceed the amount offered by the statutory authority, the costs shall be in the discretion of the Court on such basis as the Court considers just,

and the Court shall determine what are reasonable costs and shall fix the amount of costs to be paid by or to the statutory authority.

52(2)For the purposes of subsection (1), the Court shall have regard to the most recent offer of settlement of the compensation payable, if any, made by an expropriating authority or a statutory authority not less than ten days before the commencement of the hearing in respect of the notice of arbitration or, where the hearing is adjourned, not less than ten days before the hearing reconvenes.

52(3)Subsection (2) applies

(a)to proceedings in respect of any notice of arbitration outstanding on the commencement of this subsection, where the proceedings have not been settled or there has been no final judgment on the commencement of this subsection, and

(b)to proceedings in respect of any notice of arbitration filed or served after the commencement of this subsection.

1973, c.6, s.52; 1983, c.31, s.30; 1997, c.24, s.1.

52.1(1)An expropriating authority or a statutory authority may at any time make an offer of settlement of the compensation payable in response to a notice of arbitration.

52.1(2)An offer of settlement made under subsection (1) may be based on any or all of the aspects of compensation specified in subsection 38(1).

1997, c.24, s.2.

53A statutory authority may make and perform an agreement with an owner in respect of any claim of the owner under this Act, including any costs of the owner and notwithstanding that this Act requires the claim to be determined by the Court.

1973, c.6, s.53; 1983, c.31, s.31.

54Where the land has been expropriated, the compensation agreed to or determined under this Act stands in the stead of the land, and any claim to or encumbrance on the land is, as respects the expropriating authority and the Crown where the expropriating authority is a Minister of the Crown, converted into a claim to or upon the compensation and no longer affects the land.

1973, c.6, s.54; 1975, c.21, s.8; 1982, c.3, s.25.

55(1)In any case where the statutory authority considers it advisable, it may, without an order, pay into the Court any amount required to be tendered to an owner, or any compensation agreed upon with the owner or determined by the Court, together with a sum equal to the interest thereon at the rate of six per cent a year for six months.

55(2)Upon an application for payment out of court of the compensation paid into court, the Court may direct that such notice of the application be given by publication or otherwise as it considers proper and may direct the trial of an issue or make such order with respect to the payment out of court of compensation and as to costs it considers reasonable.

55(3)Where an order is obtained under subsection (2) in less than six months after the payment of the compensation into court, the Court may direct that a proportionate part of the interest be returned to the statutory authority.

55(4)Where unborn issue or an unascertained person or class is interested in compensation paid into court, the Court may appoint such person as it considers proper to represent them, and any order made under this section is binding upon them.

1973, c.6, s.55; 1983, c.31, s.32.

56The Lieutenant-Governor in Council may make regulations

(a)establishing an amount for the purposes of subsection 17(5);

(b) Repealed: 1983, c.31, s.33.

(c)prescribing forms for the purposes of this Act and providing for their use;

(d) Repealed: 1983, c.31, s.33.

(e)prescribing procedures to be used before the Court acting under Part II of this Act; and

(f)generally, for the better administration and carrying out of the purposes and intent of this Act.

1973, c.6, s.56; 1983, c.31, s.33.

PART III

TRANSITION AND REPEAL

57Notwithstanding any other provision of this Act,

(a)every expropriation prior to the coming into force of this Act shall be governed in all respects, including compensation therefor, abandonment thereof, appeal or any other matter relating thereto arising after the coming into force of this Act, on the basis of the law in force immediately prior to the coming into force of this Act; and

(b)the Land Compensation Board shall continue for the purposes of completing all proceedings and claims before the Land Compensation Board for which an order of the Land Compensation Board setting a date for hearing has been made under subsection 6(3) of Regulation 66-9A under the Land Compensation Board Act, and for such purposes shall have all the jurisdiction and powers vested in the Land Compensation Board prior to the coming into force of this Act.

1973, c.6, s.61.

58(1)The Property Compensation Board shall stand in the stead of the Land Compensation Board to hear claims in respect of expropriations prior to the coming into force of this Act for which no order of the Land Compensation Board setting a date for hearing has, on the coming into force of this Act, been made under subsection 6(3) of Regulation 66-9A under the Land Compensation Board Act, and for such purpose the Property Compensation Board shall exercise the powers and jurisdiction that the Land Compensation Board would have had in respect of such claims by virtue of paragraph 57(b) if, prior to the coming into force of this Act, a date for a hearing had been set by the Land Compensation Board.

58(2)Where pursuant to an appeal of a decision of the Land Compensation Board taken under the Land Compensation Board Act, chapter 6 of 13 Elizabeth II, 1964, any matter is directed by a court to be reheard, the matter shall be reheard by the Property Compensation Board, and for such purposes the Property Compensation Board shall stand in the stead of the Land Compensation Board.

58(3)For the purpose of ascertaining the powers of the Property Compensation Board with respect to proceedings under subsections (1) and (2), the Land Compensation Board shall be deemed to have had, immediately prior to the coming into force of this Act, the same powers as are exercisable by the Property Compensation Board under section 32 and under the regulations.

1973, c.6, s.62; 1974, c.13(Supp.), s.5; 1978, c.18, s.6.

59Subject to section 58, a reference in any other Act to the Land Compensation Board Act or to the Expropriation Act shall be deemed to be a reference to this Act, and a reference in any other Act to the Land Compensation Board shall be deemed to be a reference to the Property Compensation Board.

1973, c.6, s.63.

60Where, prior to the coming into force of this Act, an application for an expropriation was made under section 24 of the Expropriation Act, Chapter 77 of the Revised Statutes, 1952, but no expropriation was effected pursuant thereto, compliance with the procedure set out in that Act with respect to matters up to but not including the actual expropriation shall be deemed to be compliance with the substituted provisions of this Act, but the expropriation shall be effected and the compensation determined on the basis of this Act, and the expropriation shall in all respects be held to be an expropriation under this Act.

1973, c.6, s.64.

61Subject to section 57 and notwithstanding any other provision of this Act, every expropriation between the coming into force of this Act and the coming into force of this section shall be governed in all respects, including compensation thereof, abandonment thereof, appeal or any other matter relating thereto arising after the coming into force of this section, on the basis of the law in force immediately after the coming into force of this Act and before the coming into force of this section.

1983, c.31, s.34.

62(1)The Expropriations Advisory Board is terminated and the Officer shall stand in the stead of the Expropriations Advisory Board to complete all matters pending before the Expropriations Advisory Board at the time of the coming into force of this subsection including all matters for which a hearing has been held by the Expropriations Advisory Board but no order, report or recommendation has been given by the Board and for such purpose the Officer shall exercise the powers and the jurisdiction that the Expropriations Advisory Board would have exercised under this Act.

62(2)All appointments to the Expropriations Advisory Board are terminated and all orders relating to or fixing the amount of remuneration or fees to be paid to the members are null and void.

62(3)Notwithstanding the provisions of any order, no remuneration or fees shall be paid to the members of the Expropriations Advisory Board after the coming into force of this section.

1983, c.31, s.34.

63(1)Subject to section 64, the Property Compensation Board is terminated and the Court shall stand in the stead of the Property Compensation Board to complete all matters pending before the Property Compensation Board at the time of the coming into force of this subsection and for such purpose the Court shall exercise the powers and the jurisdiction that the Property Compensation Board would have exercised under this Act.

63(2)Subject to section 64, all appointments to the Property Compensation Board are terminated and all orders relating to or fixing the amount of remuneration or fees to be paid to the chairman, vice-chairman or members of the Property Compensation Board are null and void.

63(3)Notwithstanding the provisions of any order but subject to section 64, no remuneration or fees shall be paid to the chairman, vice-chairman or members of the Property Compensation Board.

1983, c.31, s.34.

64(1)The Property Compensation Board shall continue for the purposes of

(a)completing any matter for which a hearing has been held by the Board at the time of the coming into force of this section but no decision has been made and no written reasons for the decision has been given to the parties, and

(b)dealing with any matters remitted to it by a court at the time of the coming into force of this section to be heard again or to be otherwise dealt as a court has directed,

and for such purposes shall have all the jurisdiction and power vested in the Property Compensation Board prior to the coming into force of this section.

64(2)With regards to the matters referred to in subsection (1), the Property Compensation Board shall

(a)where a hearing has been held, make a decision, and prepare written reasons within a reasonable period of time of the coming into force of this section;

(b)where a matter is to be heard again, hold a hearing as directed by a court, make a decision and prepared written reasons within a reasonable period of time; or

(c)deal with a matter as directed by a court within a reasonable period of time.

64(3)The chairman, vice-chairman and any member of the Property Compensation Board who are engaged in making a decision, conducting a hearing or dealing with a matter as provided for in subsection (2) shall, during the period of time they are actually engaged therein, be paid on a per diem basis such amount as determined by the Lieutenant-Governor in Council.

64(4)Notwithstanding the expiration of the term of a chairman, vice-chairman or other member of the Property Compensation Board, the chairman, vice-chairman or other member shall continue as a member of the Board for the purpose of completing any matter in relation to which he participated as a member of the Board.

64(5)Members of the Property Compensation Board constituting a quorum in respect of any matter referred to in subsection (1) shall sit during any proceeding in relation to that matter until a determination is made with respect to that matter.

1983, c.31, s.34.

65Subject to section 64, a reference in any Act, other than this Act, regulations, orders, rules, resolutions, by-laws or other instruments to the Expropriations Advisory Board shall be deemed to be a reference to the Expropriations Advisory Officer, and a reference in any Act, other than this Act, regulations, orders, rules, resolution, by-laws or other instruments to the Property Compensation Board shall be deemed to be a reference to the Court acting under Part II of this Act.

1983, c.31, s.34.

N.B. This Act is consolidated to June 22, 2006.

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