Expropriation
Remedies in nuisance are one legal tool used by property owners—with mixed success—to stop their neighbours from adversely affecting use and enjoyment of the owner’s land. Nuisance, in other words, is one means to exclude others from doing something that limits owners’ freedom related to property. This means of exclusion, however, unavoidably limits the freedom of others to use their land as they choose. In these cases, the courts must choose not only whose rights should win out but also find some way to address the fundamental dilemma of conflicting freedoms inherent in legal liberalism.
In other cases it is not a neighbouring landowner who is accused of infringing the plaintiff’s property rights, but the state itself. This type of claim engages the state’s power of expropriation (power to take away property rights)—in some contexts, called the power of eminent domain.
In the most dramatic cases, the state exercises its expropriation power to take private title to land (for example, to build a highway or an airport). But there are many other cases in which the state leaves title in the hands of the landowner but “takes” one or more sticks in the ownership bundle by way of regulation or other legislative act. In their broadest sense, such “regulatory takings” (as they are now called) are ubiquitous, ranging from environmental regulations to building codes and zoning bylaws. Similar to claims in nuisance, these state actions have sometimes been cast as violations of claimant landowners’ traditional rights of property.
A key legal issue is to what extent landowners in Canada can exclude governments from expropriating or otherwise regulating their property rights in the absence of compensation. Unlike the United States and several modern constitutional democracies, Canada lacks any constitutional protections for private property against state attempts to limit or take away those rights. Lacking such explicit protections, it has generally not been possible for claimants to invoke existing constitutional rights in ways that protect private property.
What protections do exist mainly take the form of provincial expropriation statutes. These statutes do not prevent government from expropriating property altogether, but they do impose certain restrictions on this activity, such as that it must be undertaken for a public purpose and that adequate compensation to landowners must be paid. Such compensation is clearly required when title is taken away by the state. Much less clear is to what extent governments in Canada are responsible for compensating landowners for regulatory activity that “takes” one or more sticks in the bundle. As the United States Supreme Court observed in Pennsylvania Coal Co. v Mahon, “[g]overnment hardly could go on if, to some extent, values incident to property could not be diminished without paying for every such change in the general law.”