A Case on De Facto Taking
In the recent case of Altius Royalty Corporation v Alberta, 2021 ABQB 3, Master Farrington considered the issue as to whether the Federal Government's Carbon Dioxide Emission Regulations amounted to a de-facto expropriation.
The Court said at 27:
In Canadian Pacific Railway Co. v. Vancouver (City), 2006 SCC 5, which was the most recent Supreme Court of Canada case on the “taking” issue, the Court unanimously held at paragraphs 30-32:
For a de facto taking requiring compensation at common law, two requirements must be met: (1) an acquisition of a beneficial interest in the property or flowing from it, and (2) removal of all reasonable uses of the property (see Mariner Real Estate Ltd. v. Nova Scotia (Attorney General) (1999), 1999 NSCA 98 (CanLII), 177 D.L.R. (4th) 696 (N.S.C.A.), at p. 716; Manitoba Fisheries Ltd. v. The Queen, 1978 CanLII 22 (SCC),  1 S.C.R. 101; and The Queen in Right of British Columbia v. Tener, 1985 CanLII 76 (SCC),  1 S.C.R. 533.
The Master decided that in the circumstances, the government's actions did not amount to a taking as the government did not acquire beneficial interest.
At paragraph 45 the Court had this to say:
Surely, and without more, the law cannot be that a regulator purporting to regulate in the interests of public health and environmental preservation must pay the creator of a health or environmental hazard to stop polluting. That is not to say that there has been a specific finding that there is or is not a health hazard at the emission levels set here. That issue is simply not before the Court from an evidentiary point of view, and the regulation has not been challenged as being arbitrary or capricious.
If you require advice as to whether government action amounts to de facto taking or expropriation, please free to contact us.
The information contained in this article is not legal advice. No solicitor client relationship is formed through this article. The reader is encouraged to retain counsel for advice in these matters.