Compensation

Good morning.

Yard maintenance can ruin a good summer. So who could blame Wolfgang Ruck for arguing that tall grass and untamed weeds are a form of expression? Unfortunately for Ruck, Justice Lemay said Mississauga’s weed control bylaw puts a reasonable limit on fundamental gardening-related freedoms.

— Dylan Gibbs, with Michel Hajjar

• The dollars and cents of constructive expropriation

• COVID frustration

• Handling encampments

• Protecting informers

EXPROPRIATION

SCC puts a value on constructive expropriation

St. John’s v. Lynch, 2024 SCC 17

Sometimes expropriation happens by a thousand cuts. A public authority slowly restricts a property’s uses until the property ends up useless. And that makes it hard to figure out how much money the public authority owes the owner.

Does the owner get the value before the first cut, the diminished value before the thousandth cut, or something in between? The Supreme Court’s latest decision is about deciding which cuts count against a property’s market value—and which cuts don’t.

What happened: The Lynch family has owned land in a watershed near St. John’s since 1917. The land didn’t come with any restrictions. But it sure has them now.

• A 1978 law prevented the Lynches from building on the land without the City’s permission.

• The province rezoned the land in 1994, prohibiting just about everything other than agriculture.

• And in 2011, the City said it wouldn’t approve any use of the property, telling the Lynches to keep the land in its natural state.

A question of values: The City took the Lynches’ land by making it useless. If the expropriation began with the 1994 rezoning, the City took land with development potential. But if the expropriation started later, the City took land that already didn’t have much going for it. It’s a big difference for the Lynches—the prospect of residential development would increase the land’s value by as much as $770,000.

Unfortunately for the Lynches: The Supreme Court sided with the City. The Court said the goal is to calculate the property’s value as if the expropriation never happened. If a property's value changes because of the expropriation process, those changes don’t count.

The hard part is deciding which steps are part of the expropriation process.

• According to the Court, it depends on the public authority’s intent.

• Expropriation only includes steps the public authority made with expropriation in mind. Everything else is independent.

• There’s no bright line, but the Court did give decision makers some factors to consider.

The fact-driven focus on intent hurt the Lynches—the Court restored the application judge’s view that the 1994 rezoning didn’t relate to the expropriation.

YMMV: Different expropriation statutes use different language to describe the same principle. The Court wrote its decision broadly, but the analysis depends on the statute.

HEARSAY ROUNDUP

Canadiana

😷 It’s not you—it’s the vaccination policy. The Ontario Court of Appeal accepted that an unexpected vaccination policy can frustrate an employment contract. The Court upheld a lower court decision that let VuPoint System cut ties with its employee—an unvaccinated TV technician.

😭 It’s tough out there for Big Tech. Companies aren’t just getting sued for doing too little to moderate online content—they’re also getting sued for doing too much. A Quebec judge recently authorized class actions against Google and Meta, which allege the companies’ handling of COVID-19 content stifled freedom of expression. The plaintiffs say the companies’ actions violated the Quebec Charter. Robert F. Kennedy Jr. sued Meta for a similar reason yesterday, relying on the US Constitution’s First Amendment.

⛺️ Campus encampments are back in court. McGill asked for an injunction yesterday to evict campus protestors. The school’s application follows a similar request by two students, which Quebec’s Superior Court rejected earlier this month. Alberta schools tried something different over the weekend, opting for a clear first, ask questions later approach. McGill wanted to do the same, but Montreal police refused to get involved.

WHAT ELSE IS HAPPENING

► The LSO is still adamant that abusing children and lying about it means you don’t have good character. The regulator applied for judicial review of the tribunal decision that welcomed a controversial licensing candidate into the profession. The Divisional Court stayed the candidate’s admission pending the review.

► Justice Minister Arif Virani announced appointments to the Tax Court and the Superior Court of Justice yesterday. The Ontario appointments are a welcome addition to the Toronto courthouse, where criminal prosecutions stayed for delay keep making headlines.

► CN can keep building its massive shipping terminal, even though the Federal Court overturned the project’s approval. The Federal Court of Appeal stayed the lower court decision pending CN’s appeal, concluding that the public interest favours forging ahead with construction.

► The federal government agreed to pay $150 million to settle a class action alleging racist treatment in the military.

THINGS NOT TO DO 😤

Don’t burn confidential informants. The Ontario Court of Appeal stayed a criminal prosecution after Crown counsel disclosed sensitive information about a confidential informant to their co-accused. It didn’t help that the Crown insisted on doing nothing to fix the problem.

PS: I can’t be the only one who gets a kick out of redactions.

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