ARTICLE
8 June 2023

Alberta Court Dismisses Constructive Taking Lawsuit - Municipal Law Alert

On May 31, 2023, Application Judge Mason issued her reasons for decision, summarily dismissing a $19.4 million claim for constructive taking against Alberta Transportation and the City of Chestermere.
Canada Real Estate and Construction

On May 31, 2023, Application Judge Mason issued her reasons for decision, summarily dismissing a $19.4 million claim for constructive taking against Alberta Transportation and the City of Chestermere.

This particular case holds significant importance as it is the first in Alberta to address the concept ofde facto expropriation since the Supreme Court of Canada's landmark ruling inAnnapolis. The decision inAnnapolis clarified the doctrine of "constructive taking" as articulated inCPR v City of Vancouver.

I acted for the City of Chestermere.

In her reasons, Mason AJ made three noteworthyfindings:

  1. Constructive taking is not a continuing tort.
  2. The MGA's appeal provisions are considered an adequate remedy, andchallenges to municipal planning decisions do not give rise to a civil cause of action.
  3. Restrictions under a land use bylaw do not amount to "use," and the refusal to issue a development permit, where there are other permitted and discretionary uses, does not remove all reasonable uses of the property as required by Annapolis to found an action forde factoexpropriation.

530556 Alberta Ltd. v His Majesty the King in right of the Province of Alberta Ministry of Transportation and the City of Chestermere(ABKB, Court File 2101 02876)

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