Cheryl Gallant, Member of Parliament for Renfrew-Nipissing-Pembroke, said in a media release this week that she is tabling private member legislation which seeks to amend the Expropriation Act to advance private property protections for Canadians. The House of Commons legislative website shows Bill C-222 received its Introduction and First Reading on February 25.
“There has been a disturbing trend in Canada towards what is referred to as regulatory, de facto or constructive taking of private property. This happens when Government uses its statutory powers to regulate or restrict the property rights of an owner, without acquiring title to the land being adversely affected. The landowner feels the impact of the regulation as if the land has been expropriated,” said Cheryl Gallant, M.P.
In the United States, under the Fifth Amendment of the American Constitution, no private property may be taken for public use without just compensation and without the due process of law. U.S. law recognizes a compensable “regulatory taking” where the regulations remove from the land all economic value, or forces owners to suffer loss of use and enjoyment of their own property.
In Canada, government acquisition of land without the owner’s consent is not subject to the Canadian Charter of Rights and Freedoms. Private property rights were excluded from the Canadian Constitution when it was repatriated in 1982. No constitutional right for Canadians to have property rights exists. Landowners’ rights are found in expropriation legislation and not in the Charter. The government must follow the law as to what land may be expropriated, and must observe the procedures set out in the legislation that generally serves to protect the private landowner.
In Canada, the government can strictly regulate land, limiting its value and what a landowner can do with it, without triggering the procedures in the legislation. A de facto or regulatory taking means a property owner is not entitled to compensation unless the restrictions of the owner’s rights are such that they should be properly regarded within the meaning of the Expropriation Act. This is a high bar to meet.
By setting out exceptions in the Expropriation Act, Bill C-222 seeks to remove some uncertainty from the existing legislation as to whether owners must be compensated for certain types of de facto takings. When governments actually expropriate private property, well-established common law principles, and Canada’s courts combine to usually give property owners at least some compensation in exchange.
Gallant,C. (2020,Feb.25) MP Gallant Seeking Private Property Protections for Canadians [media release]
