We pick up the topic of constructive takings from last term by looking at this rapidly changing area of contemporary doctrine, and also introduce the topic of acquired rights.
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Learning Objectives
Learning objectives are statements about the skills, knowledge and attitudes learners will acquire or develop when they complete this lesson.
By the end of this week, you should be able to:
- Identify the elements of the current legal test for constructive takings, explain how these have changed over time, apply the test in practice, and critically analyze problems or inconsistencies in the doctrine.
- Define acquired rights and describe their source and the underlying rationales for their protection by the common law.
- Analyze the scope of acquired rights based on the framework established in the Saint Romuald case.
This week, will begin to revisit some of last term’s topics from the perspective of the modern style of Anglo-Canadian thought. Our primary focus this week will pick up on our discussion of constructive expropriation from the McLaren v Caldwell and Manitoba Fisheries Inc.. Recall that these cases involve claimed “takings” of property rights (or “sticks” from the ownership bundle) by the state, for which the owner would like to receive some form of compensation.
The line of cases we will read this week develop the more robust contemporary common law framework and legal test for resolving these claims about constructive takings. However, this area of the law remains heavily contested and is continually evolving.
In addition to issues of constructive expropriation, we will also explore the related issue of “acquired rights” (sometimes called “legal non-conforming uses”). Such rights arise in the hands of landowners engaged in pre-existing land uses when a zoning or other land-use bylaw changes. Provincial statutes, combined with common law doctrine, generally permit owners to maintain pre-existing uses even when those uses are prohibited by the new bylaw. But because such uses can themselves change and evolve over time, this area of the law raises difficult questions about how far the protections afforded by acquired rights can and should extend.
Weekly Problem: Flood on the Red River
After you have read through the background for this week's lesson above, your next step is to review the weekly problem.
The Province of Manitoba exercises its statutory authority to flood regions upstream of Winnipeg in the course of operating the city's floodway, while a local municipality amends its bylaw to prevent adjacent land-uses.