The Wrong of Constructive Expropriation

Abstract

This paper discusses the cause of action of constructive expropriation recently restated in Annapolis Group Inc v Halifax Regional Municipality. It argues that this cause of action came into existence through a series of Supreme Court of Canada decisions that deviated from principle, precedent, and respect for legislative supremacy, culminating most vividly in Annapolis itself. The result, it argues, is a common law chimera — a cause of action that seems unique in private law. This raises a puzzle: taxonomically, what is constructive expropriation in law? This paper argues that constructive expropriation is best seen as a tort, even though it sits uneasily besides its more established tort brethren. Framing the post-Annapolis constructive expropriation cause of action as a tort reveals the incoherencies between constructive expropriation and other doctrines of private law. The paper concludes by considering what ought to be done. Drawing on the jurisprudential history of constructive expropriation before the SCC, it argues that the courts are ill-equipped to make constructive expropriation more coherent on their own. It therefore argues that legislative intervention is warranted, either to restructure the cause of action or to abolish it altogether.

Keywords: Constructive Expropriation, De Facto Expropriation, Legal Taxonomy, Canadian Law