Federal Law–Civil Law Harmonization Act, No. 3 (S.C. 2011, c. 21)
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Assented to 2011-11-29
PART 1AMENDMENTS TO CERTAIN ACTS
R.S., c. E-21Expropriation Act
143. Subsections 28(1) and (2) of the Act are replaced by the following:
Marginal note:Additional factors to be taken into account
28. (1) The fact of
(a) an abandonment or revesting under this Part of an interest in land or an immovable real right or of the remainder of the interest or rights, or
(b) any undertaking given on behalf of the Crown by the Minister, or by any other person within the scope of the Minister’s authority, to make any alteration, construct any work or grant or concede or transfer any other land or interest in land or immovable real right,
shall be taken into account, in connection with all other circumstances of the case, in determining the amount to be paid to any person claiming compensation for an expropriated interest or right.
Marginal note:Compensation payable if intention to expropriate abandoned
(2) If an intention to expropriate an interest in land or immovable real right or the remainder of the interest or rights has been abandoned, the compensation payable by the Crown to its owner or holder is the amount of any actual loss sustained by the owner or holder, after the time when the notice of intention was registered and before the time when the abandonment of the intention, or the intention to expropriate a more limited interest or right, as the case may be, was confirmed, in consequence of the registration
(a) of the notice of intention, if the intention to expropriate the interest or right has been abandoned; or
(b) of the notice of intention in so far as that notice relates to the remainder of the interest or rights, if the intention to expropriate the remainder has been abandoned.
144. (1) Subsections 30(1) and (2) of the Act are replaced by the following:
Marginal note:Notice to negotiate settlement of compensation payable
30. (1) If, after an offer of compensation in respect of an expropriated interest or right has been made under section 16 to any person entitled to compensation, that person and the Minister are unable to agree on the amount of the compensation, either the person or the Minister may, within 60 days after the day on which the offer is made, serve on the other a notice to negotiate settlement of the compensation to which the person is then entitled.
Marginal note:Stay of proceedings
(2) If a notice has been served as provided in subsection (1), no proceedings under sections 31 and 32 are to be instituted, or if instituted are to be proceeded with, by or on behalf of either the person entitled to compensation or the Attorney General of Canada in respect of the expropriation, until the expiration of 60 days after the day on which the notice is served, unless before the expiration of those 60 days the negotiator to whom the matter is referred under subsection (4) has made a report to the Minister that he or she has been unable to effect a settlement and has sent a copy of the report to the person entitled to compensation.
(2) Subsections 30(4) to (6) of the Act are replaced by the following:
Marginal note:Reference to negotiator
(4) Immediately after any notice to negotiate is served on the Minister or a person entitled to compensation in accordance with this section, the Minister shall refer the matter to a negotiator appointed under subsection (3) who shall, on reasonable notice to that person and the Minister, meet with them or their authorized representatives, make any inspection of the land that he or she deems necessary, receive and consider any appraisals, valuations or other written or oral evidence submitted to him or her on which either the person or the Minister relies for his or her estimation of the amount of the compensation payable, whether or not the evidence would be admissible in proceedings before a court, and endeavour to effect a settlement of the compensation payable.
Marginal note:Report of negotiator
(5) The negotiator shall, within 60 days after the day on which the notice to negotiate is served, report to the Minister his or her success or failure in the matter of the negotiation, and shall thereupon send a copy of his or her report to the person entitled to compensation.
Marginal note:Statements in course of negotiation
(6) Evidence of anything said or of any admission made in the course of a negotiation under this section is not admissible in any proceedings before a court for the recovery or determination of the compensation payable to the person entitled to it.
145. (1) The portion of paragraph 31(1)(a) of the Act before subparagraph (i) is replaced by the following:
(a) a person entitled to compensation in respect of an expropriated interest or right may,
(2) Subparagraph 31(1)(b)(ii) of the Act is replaced by the following:
(ii) the names, so far as they have been ascertained, of each of the persons entitled to compensation in respect of an expropriated interest or right and the names of the persons who are to be parties to the proceedings,
146. Subsection 32(5) of the Act is replaced by the following:
Marginal note:Judgment as bar to further claims
(5) A judgment, whether by consent, default or otherwise, in any proceedings under this section or section 31 bars all further claims of the parties and of any persons claiming on their behalf or under their direction, including any claim in respect of dower or of dower not yet open or in respect of any mortgage, hypothec or other right, and the Court shall declare the amount of compensation payable and make any order for the distribution, payment or investment of any compensation money, and for the securing of the rights of all persons interested, that may be necessary.
147. Sections 33 to 35 of the Act are replaced by the following:
Marginal note:Character of compensation
33. (1) Any compensation agreed to be payable or the compensation adjudged by the Court under this Part to be payable in respect of an expropriated interest or right stands in lieu of the interest or right.
Marginal note:Effect of payment in case of security interest or real security
(2) Any compensation agreed to be payable or the compensation adjudged by the Court under this Part to be payable in respect of a security interest or real security described in subsection 26(10) is, for all purposes as between the owner or holder of the interest or right, subject to the security interest or real security and the owner or holder of the security interest or real security, to be deemed to discharge any liability, under the terms of the security, of the owner or holder of the interest or right, subject to the security interest or real security, to the extent of the compensation so agreed or adjudged to be payable, and, if any amount or proportion of any amount described in subparagraph 26(10)(b)(ii) is included in the compensation, to be in full satisfaction of any notice or bonus required under the terms of the security in respect of its prepayment resulting from the expropriation.
Marginal note:Crown in position of purchaser
34. If any compensation in respect of an expropriated interest or right has been paid to a person of whose right to claim compensation the Crown had notice at the time of payment, no compensation is payable to another person, whether that other person’s interest or right is derived from the person to whom compensation has been paid or otherwise, if under the law of the province in which the land is situated the interest or right giving rise to the claim to compensation of that other person would have been void or, in Quebec, null or unenforceable against the Crown had the Crown, at the time the notice of intention was registered, been a purchaser of the expropriated interest or right.
Marginal note:Set-off and recovery of excess compensation
35. If any compensation has been paid to a person in respect of an expropriated interest or right pursuant to an offer made to them under section 16, the amount so paid to that person is to be deducted from the amount of the compensation adjudged by the Court under this Part to be payable to them in respect of that interest or right, and when the paid amount exceeds the amount so adjudged to be payable, the excess constitutes a debt due to the Crown and may be recovered by the Crown in any court of competent jurisdiction.
148. The definition “compensation” in subsection 36(1) of the Act is replaced by the following:
“compensation”
« indemnité »
“compensation” means the amount adjudged by the Court under this Part to be payable in respect of an expropriated interest or right;
149. Subsection 37(1) of the Act is replaced by the following:
Marginal note:Entry for inspection appraisal
37. (1) If a notice of intention has been registered, any person authorized in writing in that behalf by the Minister may, at any reasonable time on notice to a person in occupation of the land to which the notice relates, enter on the land for the purpose of making any inspection of the land that they are authorized by this Part to make, or for the purpose of making an appraisal of the value of the land or any interest in land or immovable real right.
150. Subsection 38(1) of the Act is replaced by the following:
Marginal note:Warrant for possession
38. (1) When the Minister, or a person acting for the Minister, is prevented from entering on or taking physical possession or making use of any land to the extent of any expropriated interest or right under this Part, a judge of the Court or any judge of a superior court of a province may, on proof of the expropriation and, when required, of the right of the Crown to take physical possession or make use of it, and after notice to show cause given in any manner and to any persons who shall be parties to the proceedings that the judge prescribes, issue a warrant in accordance with the form set out in the schedule to the appropriate sheriff directing that the Minister, or a person authorized to act for the Minister, be put in physical possession of the land to the extent of the expropriated interest or right.
151. Subsection 39(2) of the Act is replaced by the following:
Marginal note:Costs payable by the Crown
(2) If the amount of the compensation adjudged under this Part to be payable to a party to any proceedings in the Court under sections 31 and 32 in respect of an expropriated interest or right does not exceed the total amount of any offer made under section 16 and any subsequent offer made to the party in respect of that interest or right before the commencement of the trial of the proceedings, the Court shall, unless it finds the amount of the compensation claimed by the party in the proceedings to have been unreasonable, direct that the whole of the party’s costs of and incident to the proceedings be paid by the Crown, and if the amount of the compensation so adjudged to be payable to the party exceeds that total amount, the Court shall direct that the whole of the party’s costs of and incident to the proceedings, determined by the Court on a solicitor and client basis, be paid by the Crown.
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