Skip to main content
The Expropriation Act
This is an unofficial version.
If you need an official copy, use the bilingual (PDF) version.

This version is current as of September 27, 2016.
It has been in effect since November 5, 2015.

Show previous versions Hide previous versions

Previous versions:

Note: Earlier consolidated versions are not available online.

 

 

C.C.S.M. c. E190

The Expropriation Act

HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:

Definitions

1(1)        In this Act,

"authority" means any person, including the Crown in right of Manitoba, who under an Act of the Legislature has power to acquire land by expropriation; (« autorité expropriatrice »)

"authorizing Act" means the Act of the Legislature other than this Act under which an authority is granted power to acquire land by expropriation; (« loi habilitante »)

"commission" means The Land Value Appraisal Commission established under The Land Acquisition Act; (« Commission »)

"confirming authority" means

(a) where the authority is a municipality, the council thereof;

(b) where the authority is a school division, school area or school district, the board of trustees thereof;

(b.1) where the authority is a regional waste management authority established under The Regional Waste Management Authorities Act, the Municipal Board;

(c) where the authority is the Crown, notwithstanding The Land Acquisition Act, the member of the Executive Council who signed or authorized the signing of the declaration, or the member of the Executive Council who is charged with the administration of the program or project for which the land is required;

(d) where the authority is a Crown agency, the member of the Executive Council through whom the agency reports to the assembly; and

(e) in every other case, the Lieutenant Governor in Council; (« autorité chargée de la confirmation »)

"court" means Her Majesty's Court of Queen's Bench for Manitoba; (« tribunal »)

"Crown agency" means any board, commission, association or other body, whether incorporated or unincorporated, all the members of which, or all the members of the board of management or board of directors of which are appointed by an Act of the Legislature or by the Lieutenant Governor in Council; (« organisme de la Couronne »)

"declaration" means a declaration of expropriation made by an authority under this Act; (« déclaration »)

"expropriation" means the acquisition of title to land without the consent of the owner thereof; (« expropriation »)

"highway" includes any highway, road, road allowance, street, lane, or thoroughfare, dedicated to the public use as a highway or opened or made as a highway under any Act of the Legislature, and any bridge, floodway, pier, ferry, square or public place, dedicated to the public use as a highway and any highway improvements or works thereon or pertinent thereto; (« route »)

"land" means land, messuages, tenements, hereditaments, corporeal and incorporeal, of every kind and description, whatever the estate or interest therein, and whether legal or equitable, together with all paths, passages, ways, watercourses, liberties, privileges and easements appertaining thereto, and all trees and timber thereon, and all mines and minerals and quarries, unless specially excepted, and includes an interest in land; (« bien-fonds »)

"land titles office" includes a registry office, and means the office for the land titles district or registry district in which the land is situate; (« bureau des titres fonciers »)

"owner" includes the registered owner and any person who has any estate or interest in the land or any lien, charge, mortgage or encumbrance on the land, and any person in actual occupation of the land and

(a) the heirs, executors, administrators and successors of an owner at the time an ownership of the land is material, and

(b) a person who was an owner immediately prior to the expropriation of the land; (« propriétaire »)

"prescribed" means set out in Schedule B or prescribed by regulations made under this Act; (« prescrit »)

"registered owner" means an owner of land whose estate or interest in the land is defined and who is named in respect of that interest in a subsisting

(a) certificate of title issued under The Real Property Act, or

(b) grant registered under The Registry Act, or

(c) instrument registered or filed in the land titles office; (« propriétaire inscrit »)

"security interest" means an interest in or charge on land that is held as security for the payment of money and includes the interest of a vendor under an agreement of sale; (« sûreté »)

"works" means any undertaking and any works and property acquired, constructed, extended, enlarged, repaired, or improved, in the exercise of the powers of an authority. (« ouvrages »)

Expropriation deemed a "work"

1(2)        For the purposes of this Act, where land is expropriated for a purpose which does not require any construction or labour on the land to achieve the purpose, the expropriation shall be deemed to be a work and the construction of the work shall be deemed to have been completed and in use on the day the declaration is registered.

S.M. 1993, c. 11, s. 24; S.M. 1993, c. 25, s. 2.

Application of Act

2(1)         Notwithstanding any Act of the Legislature enacted before January 1, 1971, whether special or general, this Act applies wherever an authority expropriates land or in the exercise of its lawful powers causes the injurious affection of land, and due compensation shall be determined in accordance with the provisions hereof.

Conflict with other Acts

2(2)        Where there is a conflict between a provision of this Act and a provision of any other general or special Act, the provision of this Act prevails.

Crown is bound

2(3)        The Crown is bound by this Act.

Investigation regarding contamination

2.1         Before determining whether to exercise its power to expropriate land, an authority may, at its own expense, conduct an investigation of the land to determine the existence, nature or extent of any contamination of the land.

S.M. 1996, c. 40, s. 68.

Exercise of expropriation power

3           The exercise of any power to expropriate land conferred by an authorizing Act shall not be effective in any case until a declaration of expropriation has been made by the authority and been submitted to the confirming authority, been confirmed by order of the confirming authority and the declaration and the order have been registered in the land titles office.

Declaration of expropriation

4(1)        The declaration shall be in the prescribed form, and shall be signed by or on behalf of the authority and shall set forth

(a) the legal description of the land to be expropriated or in which an interest is to be expropriated;

(b) the interest to be acquired in the land by the expropriation and whether it is to be subject to any existing interest in the land;

(c) a reference to the provisions of the authorizing Act pursuant to which the land is to be expropriated; and

(d) where all or part of the land to be expropriated is for a highway, a statement

(i) that upon registration of the declaration in the land titles office, the land being acquired for a highway is thereby opened and dedicated to the public use as a highway, or

(ii) that the land is not thereby opened or dedicated as a highway.

Plan of expropriated land

4(2)        The description of the land required to be given in the declaration may be given by reference to a plan prepared by a Manitoba Land Surveyor sufficiently indicating the land to be expropriated, and in that case the plan shall form a part of the declaration for all purposes.

Plans required for highways and drains

4(3)        Where the land is being acquired by the authority for a highway or a drain, the description of the land shall be given by reference to a plan prepared by a Manitoba Land Surveyor which shall form part of the declaration for all purposes, and there may be shown on the plan any lands owned by the authority which are to be opened as part of the highway or used as a drain.

Notice on certificate of title

4(4)        Forthwith upon a declaration being signed the authority shall cause a notice of the intended expropriation to be filed in the land titles office sufficiently indicating the lands intended to be affected and stating that an application for a confirming order is pending, and the district registrar of the land titles district shall thereupon cause the notice to be entered on each certificate of title or abstract of title appearing to be affected thereby but he is not required to give any further notice thereof to any person, but subject to section 24, the notice lapses upon the expiration of six months after the date of its filing.

Where notice of intention not required

4(5)        Where the authority and all registered owners of the lands to be acquired have agreed on the settlement of the due compensation, subsection (4) does not apply.

Disturbance of minerals

5           Where the mines and minerals are not expropriated, an authority may, to the extent necessary for its works, excavate, disturb, remove, or use any minerals within, upon or under, land which it has expropriated or which it has acquired by agreement or transfer; but it is liable to compensate the owner of the mines and minerals to the extent of the value of any minerals that are actually used or removed from the land in the course of its works, or that the owner is prevented from recovering by reason of the construction of its works.

Expropriation of surplus lands

6(1)        Where an authority considers it expedient to acquire the whole of any parcel of land of which a part only is required for its works, or to acquire a greater interest in land in which a lesser interest only is required for its works, it may, at the time of acquiring the part or interest that is required, or subsequently thereto, acquire by expropriation or by agreement the whole of the parcel or the greater interest in the land; and it may separate the part or any interest not required and from time to time sell or otherwise dispose of it or any part thereof.

Elective date for assessing compensation

6(2)        Where, after it has acquired the part of a parcel or the interest in land that is required for its works, an authority acquires by expropriation under subsection (1), a part of a parcel, or an interest in land, that is not required for its works, it may, with the consent of the owner thereof, have the due compensation therefor assessed as of the date on which it acquired the part or interest that is required for its works.

Crown lands not expropriated

7(1)        Land owned by the Crown or a Crown agency shall not be expropriated.

Lands used for public services

7(2)        Subject as hereinafter in this section provided, land owned by or on behalf of any corporation other than a Crown agency and used by it for

(a) the delivery, transmission, or control of electric power, heat, gas, oil, or water; or

(b) the provision of telephone, telegraph, radio, or television services; or

(c) public sewers, drains, sewerage system, or the removal, disposal, or treatment of sewage; or

(d) a public transportation system owned and operated by government or municipal body or agency;

shall not without the consent of the Lieutenant Governor in Council be expropriated except by the Crown; but land to which this subsection applies does not include any land occupied and used solely for administrative purposes.

May be shown on plan

7(3)        Where land which cannot be expropriated under subsection (1) or (2) is acquired otherwise than by expropriation in conjunction with land that is being expropriated, the land may

(a) where it is land owned by the Crown or a Crown agency, with the consent of the Lieutenant Governor in Council; and

(b) where it is land owned by or for the purposes of a corporation and used by it for the purposes mentioned in subsection (2), with the consent of the corporation;

be shown on any plan forming part of a declaration of expropriation of the land being expropriated.

Lands owned by authority shown on plan

7(4)        Where lands are being acquired by an authority to be used in conjunction with lands already owned by the authority, the land already owned by the authority

(a) may be shown on any plan forming part of a declaration of expropriation of the lands being acquired; and

(b) for the purposes of subsection 13(2) shall be deemed to be part of the lands expropriated.

Crown lands shown on highways plan

7(5)        Where lands being acquired by the government or a municipality for use as a highway, drain or water control work are to be used in conjunction with Crown lands or lands owned by a Crown agency, the Crown lands or lands owned by a Crown agency required for the highway, drain or water control work

(a) may, with the consent of the member of the Executive Council charged with the administration of Crown lands or the member of the Executive Council responsible for the Crown agency, as the case requires, be shown on any plan forming part of a declaration of expropriation of the lands being acquired for the highway, drain or water control work or on any plan filed under section 13 in respect of the highway, drain or water control work; and

(b) for the purposes of subsection 13(2) shall be deemed to be part of the lands expropriated.

Expropriation of land of authority

8(1)        Where an authority other than the Crown expropriates land of which another authority is an owner, either authority may apply to The Municipal Board to prescribe, and the board may prescribe, the terms and conditions, including the provision of other lands and facilities, upon which the expropriation may proceed, and the board may, in its absolute discretion, order that the expropriation be abandoned.

Paramount rights preserved

8(2)        Nothing in this section limits any paramount right that an authority has by statute.

Considerations in municipal expropriation

8(3)        In respect of the expropriation of land in a municipality by another municipality, The Municipal Board shall include in its considerations the interests of each municipality and the owner and occupier of the land, the need for the proposed expropriation, the availability of other land, and any alternative to expropriating the land.

Jurisdiction over expropriated land

8(4)        Land expropriated in a municipality by another municipality remains subject to the jurisdiction of the municipality in which it is situated and is subject to any tax levied by that municipality in respect of the land, unless the municipalities otherwise agree or The Municipal Board otherwise orders.

S.M. 1996, c. 58, s. 451.

Confirming authority

9(1)        Upon a declaration being submitted to it, the confirming authority shall act and shall cause proceedings to be taken in accordance with Schedule A and may by its order

(a) confirm the declaration; or

(b) refuse the declaration; or

(c) with the consent of the authority submitting the declaration, confirm the declaration with such modification thereof as it considers proper but not so as to affect the land of an owner who has been afforded no opportunity to be heard in the proceedings in respect of the modification.

Confirming authority not to delegate

9(2)        Notwithstanding any other Act of the Legislature, a confirming authority shall not delegate to any person the duties or powers mentioned in subsection (1).

Amendment of declaration

9(3)        Where a declaration is confirmed with modification, the authority shall amend the declaration in accordance with the order before presenting the declaration for registration in the land titles office.

Service of confirming order

9(4)        The authority shall cause a copy of the order of the confirming authority to be served forthwith upon all owners of the land so far as they may be ascertained from the records of the Land Titles Office and the latest revised realty assessment roll on which the land is entered, and shall cause notice of the order to be published in a newspaper having general circulation in the area of the province in which the land is situated.

Time limited for making order

9(5)        Subject to section 24, if within 120 days from the date the declaration was submitted to it the confirming authority has made no order under subsection (1) it shall be conclusively deemed to have ordered that the declaration be refused.

Order as evidence of compliance with Act

9(6)        The order of the confirming authority is prima facie proof that compliance has been made with all of the provisions of Schedule A.

Powers not enlarged

9(7)        The order of the confirming authority does not enlarge any power conferred by the authorizing Act.

Where inquiry not necessary

9(8)        The provisions of Schedule A do not apply where

(a) the Lieutenant Governor in Council, deeming it necessary or expedient in the public interest to do so in the circumstances, directs the confirming authority to make its order confirming a declaration without an inquiry being conducted; or

(b) the lands intended to be expropriated are required by the authority for the purpose of undertaking a local improvement initiated by an owner's petition in accordance with the provisions of any Act of the Legislature; or

(c) the authority and all registered owners of the lands to be acquired have agreed on the settlement of the due compensation.

Service of direction

9(9)        A copy of any direction made under subsection (8) shall be served by the expropriating authority forthwith upon the registered owners of the land to which reference is made in the declaration.

Where Schedule A not to apply

9(10)       The provisions of Schedule A and subsection (9) do not apply in respect of any owner who has agreed with the authority acquiring the lands on the settlement of due compensation.

Application to quash

10(1)       Any person aggrieved by an expropriation of land may, within six weeks after the date on which the order confirming the declaration of the expropriation is published in accordance with subsection 9(4), apply to the court by way of originating notice of motion to quash the declaration of expropriation; and, if the court is satisfied that the expropriating authority or the confirming authority has failed to comply with the Act under which the land is to be expropriated, or with any requirement of this Act in respect of the declaration of expropriation, notice of the intended expropriation, any inquiry by an inquiry officer into the intended expropriation or the order confirming the expropriation, which prejudices the position of the applicant, the court may quash the declaration of expropriation.

Restriction on actions

10(2)       Except in accordance with subsection (1), no action or proceeding shall be had or taken to question, quash or set aside a declaration of expropriation, a notice of intended expropriation, an inquiry by an inquiry officer into an intended expropriation or an order confirming a declaration, or to declare a declaration of expropriation, a notice of intended expropriation, an inquiry by an inquiry officer into an intended expropriation or an order confirming a declaration to be null, invalid or of no effect.

Application of subsection 23(1)

10(3)       Subsection 23(1) does not apply to an application under subsection (1).

S.M. 1993, c. 25, s. 3.

Registration of declaration

11(1)       The power to expropriate land shall be effectively exercised by and upon the registration of the declaration together with the order confirming the declaration in the land titles office within fourteen days from the date of the order.

Better description or plan required

11(2)       Where a declaration is presented at the land titles office for registration, if the district registrar thinks that the land to be expropriated or the boundaries thereof cannot be accurately and readily determined by reference to the description in the declaration, or to the plan, if any, he may require from the authority a plan or a revised plan prepared by a Manitoba Land Surveyor or a better description of the lands to be expropriated, and the plan or the revised plan or the better description when filed or registered in the land titles office shall be supplementary to the declaration and in case of any conflict or inconsistency between the plan accepted by the district registrar and the description of the land contained in the declaration, the plan prevails.

Effect where expropriated interest not stated

11(3)       Where the declaration does not state the nature of the interest expropriated in the land described therein, the authority shall be conclusively deemed to have expropriated all of the interests in the land described therein.

Effect of statement of expropriated interest on other interests

11(4)       Where the declaration does not state whether the interest expropriated is subject to an existing interest, the interest expropriated shall be conclusively deemed not to be subject to any existing interest.

Declaration may be corrected

12(1)       Where a declaration registered under this Act contains or indicates an omission, misstatement, errors, or erroneous description, the authority may cause a corrected declaration to be registered.

Service of corrected declaration

12(2)       A corrected declaration shall be marked appropriately to show the nature of the correction and shall be served as the original declaration is required to be served and, except for the correction, is of the same force and effect as, and is in substitution for, the original declaration or plan and relates to the date the original declaration was registered.

Where district registrar may refuse correction

12(3)       Where, in the opinion of the district registrar, the correction indicated in a corrected declaration alters

(a) the amount or area of the lands expropriated; or

(b) the interest expropriated;

he may refuse to register the corrected declaration unless the registered owner of the lands affected by the alteration consents to the registration of the corrected declaration.

Proof of signatures not required

12(4)       Every declaration purporting to be signed by an authority and every order confirming a declaration purporting to be signed by the confirming authority shall upon registration or presentment for registration in the land titles office be presumed to have been signed by the authority and by the confirming authority respectively without proof of the signature or official character of the person purporting to have signed it.

Vesting of title

13(1)       Upon the registration in the land titles office of a declaration and the order confirming the declaration, the land declared to be expropriated vests

(a) in the case of land expropriated for a highway, in the Crown in right of the province;

(b) in the case of land expropriated by a Crown agency, in the Crown agency unless it is provided in an Act of the Legislature affecting that Crown agency, that land acquired by the Crown agency vests in the Crown in right of the province;

(c) in the case of land expropriated by a minister of the Crown in right of the province, in the Crown in right of the province; and

(d) in all other cases, in the authority expropriating the land,

free from all encumbrances except any to which the declaration is expressed to be subject.

Certificate of title

13(2)       If the land is under The Real Property Act, and the interest expropriated is an interest for which a certificate of title issues, a certificate of title to the interest expropriated clear of encumbrances shall be issued to the authority on request; but where the land is declared to be expropriated for a highway, if the authority is a municipal corporation, the certificate of title shall be issued in the name of the Crown subject to the right of the municipal corporation to the possession thereof.

Authority deemed a purchaser

13(3)       Where land vests in an authority under this Act, the authority shall be conclusively deemed to be a purchaser under section 36 of The Law of Property Act and is entitled to the rights of a purchaser thereunder.

Filing plan of lands for highways, etc

13(4)       Subject to subsection (5), an authority may, without registering a declaration or expropriating lands, file in the proper Land Titles Office a plan prepared by a Manitoba Land Surveyor showing lands that the authority intends to use for a highway, drain, water control work, pipeline, telephone line, or electric power line or any other public purpose.

Requirements for plan

13(5)       A district registrar shall not accept a plan for filing under subsection (4) unless a certificate signed by or on behalf of the authority is endorsed on or accompanies the plan certifying

(a) that all registered owners of any lands that will vest by reason of the filing of the plan have agreed with the authority on the settlement of due compensation for the land, or that the authority is the owner or entitled to be the owner of all the land affected by the plan;

(b) where any lands will vest by reason of the filing of the plan

(i) as to the interest that is to vest and whether that interest is subject to any existing interest in the lands, and

(ii) as to the provisions of any Act of the Legislature that authorizes the authority to acquire land for the purposes for which the land is to be used; and

(c) where the lands are to be used for a highway

(i) that upon the filing of the plan the lands are thereby opened and dedicated to the public use as a highway, or

(ii) that the land is not thereby opened or dedicated as a highway.

Application of subsections 7(3), (4) and (5)

13(6)       Subsections 7(3), (4) and (5) apply with such modifications as the circumstances require to a plan filed under subsection (4).

Effect of filing plan

13(7)       Where a plan is filed under subsection (4), subsections (1), (2) and (3) apply with such modifications as the circumstances require as though the filing of the plan were the registration of a declaration and an order confirming the declaration.

Statement upon opening or dedicating highway

13(8)       Where a declaration or plan filed under this Act in respect of lands acquired or to be used for a highway indicated that the land is not opened or dedicated as a highway at the time of filing the declaration or plan, the authority responsible for the highway shall, within thirty days of the day the land is opened or dedicated as a highway, register in the appropriate land titles office a statement signed by or on behalf of the authority or stating the day upon which the land is opened or dedicated as a highway.

Notice of expropriation

14          Within 60 days after the registration of the declaration the authority shall serve every owner of the land with a notice of the expropriation thereof substantially in the prescribed form.

Application to commission to determine compensation

15(1)       After an offer of compensation is served under section 16, the authority or an owner of the land may, subject to section 37 (time limits), apply to the commission, in accordance with the rules of the commission, for the determination of compensation payable by the authority to the owner for the expropriation.

Certification of amount by commission

15(2)       On receiving an application under subsection (1), the commission shall give the authority and owner of the land an opportunity to be heard and shall determine and certify the compensation payable by the authority to the owner.

Certified amount is binding

15(3)       Subject to subsection (6) and section 44 (appeal), an amount certified by the commission under subsection (2) is binding on the authority and the owner.

Authority to pay prescribed fee

15(4)       The authority shall pay any fee or charge that is prescribed in respect of a proceeding under subsection (2).

Commission may vary certified amount

15(5)       Where new evidence is available after an amount is certified under subsection (2), the authority or owner may, within 30 days after the date of the certificate, apply to the commission for a variation of the certified amount, and the commission may, where it is satisfied that the new evidence was not available at the time of the certification, vary the certified amount and, where the amount is varied, the commission shall certify the new amount of compensation payable.

Authority to pay costs of owner

15(6)       The authority shall pay reasonable appraisal, legal and other costs that are reasonably incurred by an owner for the purpose of determining the compensation payable under this Act for an expropriation.

Commission may determine costs

15(7)       Where the amount of compensation payable under this Act for an expropriation is settled by the authority and an owner without a hearing or is determined by the commission, the commission may, on application by the authority or owner, determine the costs.

S.M. 1988-89, c. 28, s. 2; S.M. 1993, c. 25, s. 4.

Offer of compensation

16(1)       Within 120 days after the registration of the declaration and before serving a notice for possession of the land the authority shall serve upon every registered owner of the land an offer in writing stating

(a) the amount that the authority offers in compensation for the market value of the owner's estate or interest in the land and the amount that the authority offers in compensation for the market value of all the estates and interests in the land;

(b) that the authority offers to pay immediately to the person entitled thereto the entire amount offered in compensation for the market value of the owner's estate or interest in the land;

(c) unless the market value has been estimated for the purposes of clause (b) upon the basis of a use of the land other than the existing use, that the authority offers to pay

(i) the moving costs, as they are incurred, that are reasonably incurred by an owner in possession of the land at the time the declaration or expropriation was filed, and

(ii) the costs, as they are incurred, that are reasonably incurred by any owner in possession of the land at the time the declaration or expropriation was filed of removing and relocating any fixture or structure owned by that owner and situated on the land at the time the declaration or expropriation was filed; and

(d) that the payment and receipt of the amount estimated for the purposes of clause (b) or of any amount under clause (c) is without prejudice to the rights conferred by this Act in respect of the determination of the compensation and that the amounts are subject to adjustment in accordance with the compensation that is subsequently agreed upon or determined under this Act.

Offer may contain offer of due compensation

16(2)       An offer served on a registered owner by an authority may state

(a) the amount that the authority offers in full settlement of due compensation to the owner including that part thereof that is not compensation for the market value of the owner's estate or interest in the land; and

(b) the total amount that the authority offers in full settlement of due compensation to all registered owners including that part thereof that is not compensation for the market value of the owners' estates or interests in the land.

Offer of further portion of due compensation

16(3)       Where an offer served on a registered owner by an authority states in accordance with clause (2)(a) the amount that the authority offers in full settlement of due compensation to the owner, the offer may also state

(a) that the authority offers to pay immediately to the person entitled thereto, in addition to the amount offered to be paid in accordance with clause (1)(b) in compensation for the market value of the owner's estate or interest in the land and the amounts offered to be paid in accordance with clause (1)(c) as moving costs and costs of removing and relocating any fixture or structure, an amount equal to 75% of that part of the amount offered in full settlement of due compensation that is in excess of the total of

(i) the amount offered to be paid in accordance with clause (1)(b) in compensation for the market value of the owner's estate or interest in the land, and

(ii) the amounts offered to be paid in accordance with clause (1)(c) as moving costs and costs of removing and relocating any fixture or structure; and

(b) that payment and receipt of the amount calculated for the purpose of clause (a) is without prejudice to the rights conferred by the Act in respect of the determination of due compensation payable by the authority and that the amount of due compensation payable by the authority is subject to adjustment in accordance with due compensation that is subsequently agreed upon or determined under this Act.

Offer may refer to amounts owing under liens

16(4)       Where a registered owner's estate or interest in the land is subject to a registered lien, charge, mortgage or encumbrance on the land, the offer served on the owner by the authority may state the amount that the authority offers in compensation to the owner for the market value of his estate or interest free and clear of the lien, charge, mortgage or encumbrance and indicate that the amount will be reduced by any amount needed to be paid to the holder of the lien, charge, mortgage or encumbrance to obtain the owner's estate or interest free and clear of the lien, charge, mortgage or encumbrance.

Offer to holder of lien, etc.

16(5)       Where a registered owner upon whom an offer is served holds a registered lien, charge, mortgage or encumbrance on the land, the offer may state the amount that the authority offers in compensation to the owner for the market value of the lien, charge, mortgage or encumbrance, as an indefinite amount needed to be paid to the owner to obtain from him the discharge, withdrawal, postponement or removal of the lien, charge, mortgage or encumbrance not exceeding the amount that the authority offers to pay the owner whose estate or interest is subject to the lien, charge, mortgage or encumbrance as compensation for the market value of his estate or interest free and clear of the lien, charge, mortgage or interest.

Offer to be held open for acceptance

16(6)       Where the authority makes an offer to an owner under this section, the authority

(a) shall hold open the offer for acceptance by the owner until an amount is certified under subsection 15(2); and

(b) may, from time to time before the offer is accepted by the owner or an amount is certified under subsection 15(2), amend the offer by serving the owner with an amended offer.

16(7)       [Repealed] S.M. 1993, c. 25, s. 5.

S.M. 1988-89, c. 28, s. 3; S.M. 1989-90, c. 90, s. 16; S.M. 1993, c. 25, s. 5.

Agreement interrupts proceedings

17          Sections 14 and 16 do not apply in any case where there is agreement between the owner and the authority for the settlement of the due compensation.

18 and 19   [Repealed]

S.M. 1993, c. 25, s. 6.

Right to take possession

20(1)       Where land vests in an authority under this Act and the authority serves the registered owner and the occupant of the land with a notice that it requires possession of the land on a date specified in the notice, the authority subject to any agreement to the contrary and subject to subsection (3) may take possession of the land on the specified date.

Notice for possession

20(2)       A notice under subsection (1) shall be served on the registered owner and the occupant of occupied land at least 30 days before the date specified therein for possession; and where the land is not occupied, the notice shall be served on the registered owner at least 10 days before the date specified for possession.

Court may vary date

20(3)       Any person served or entitled to be served with a notice under subsection (1), may apply to a judge of the court for an order changing the date for possession specified in the notice, and the judge may make such order either to confirm or to change the specified date as in the circumstances of the case he deems just and expedient; and the notice shall have effect as confirmed or amended by the order.

Order for possession

20(4)       If the owner or occupant of the land fails to deliver up possession to the authority in compliance with the notice for possession, the authority may apply to a judge of the court for an order for possession; and upon hearing the application, the judge may grant an order for possession and may require the authority to pay into court such sum of money as he deems sufficient to secure payment of the compensation for the land.

Writ for possession

20(5)       Upon an order for possession being granted, the authority may enter upon and take possession of and use the land; and if any person refuses to give up possession, or offers any resistance or forcible opposition to the authority taking possession, a judge may, with or without notice to that person, issue a writ for possession to the sheriff of the court directing him to require that person to give up possession and to put down any resistance or opposition, and to put the authority into possession thereof.

Execution of writ

20(6)       The sheriff shall, in the execution of the writ, take with him sufficient assistance for the purpose, and shall put down any resistance or opposition and put the authority in possession of the land.

Judgment for costs

20(7)       The cost of any proceedings for obtaining and execution of the writ may, with leave of the judge, be entered as a judgment in the court and recovered by the authority from the person whose refusal to give up possession made the writ necessary.

Notice of intention to vacate required

21          Except in accordance with an agreement with the authority, or in compliance with the notice for possession served under section 20, an owner of land or a person in occupation of land on whom a notice of expropriation of the land has been served shall not vacate the land unless he has notified the authority of his intention to vacate the land not less than seven days prior to the date on which he vacates the land.

Occupant liable for waste

22(1)       An owner who remains in possession of land that has been expropriated after he has been served with a notice of expropriation, or an owner or other person in occupation of land who vacates contrary to section 21, is liable to the authority for

(a) any waste he commits in respect of the land or which arises because he has improperly vacated the land;

(b) any damage he causes or permits to be caused to the land, other than the normal depreciation arising out of normal occupation of the land; and

(c) any damage which would not have occurred if he had remained in occupation of the land.

Owner liable for realty taxes

22(2)       Notwithstanding that land vests in an authority under this Act, the land is subject to the assessment and levy of all municipal rates, levies, and taxes to the same extent as if it had continued to be owned by the owner from whom the land is expropriated; and that owner is liable to pay all taxes, rates and levies levied or assessed against the land in respect of the period he remains in possession of the land whether under an express agreement or otherwise.

Extending time for doing any act

23(1)       Where the time for the doing of any thing is limited by this Act otherwise than in Schedule A, an authority or person may apply to a judge of the court upon such notice to interested parties as the judge directs for an order to extend the time within which the thing shall be done.

Failure to act in time

23(2)       The failure of an authority to do any thing within the time limited by this Act does not invalidate the expropriation; but the authority is liable to pay to any person affected by the failure interest upon the due compensation payable to the person calculated from the date of the confirming order.

Application to extend time in special cases

24(1)       Where an inquiry officer is appointed under Schedule A in respect of the intended expropriation of land under a declaration of expropriation, the authority expropriating the land, the confirming authority or the inquiry officer may apply to a judge of the court

(a) for an extension of time within which the inquiry officer is required to make his report under section 8 of Schedule A; or

(b) for an extension of time after which a notice of intended expropriation filed under subsection 4(4) in respect of the declaration of expropriation lapses; or

(c) for an extension of time after which a confirming authority, if it has not confirmed the declaration, shall be deemed under subsection 9(5) to have ordered that the declaration be refused;

and the judge, if he is satisfied that it is reasonable to grant such an extension may order that the time be extended.

Ex parte application

24(2)       An application under subsection (1), and an order under subsection (1), may be made ex parte.

Effect of extension of time under sec. 8 of Sch. A

24(3)       Where an order is made under subsection (1) extending the time in which an inquiry officer is required to make his report under section 8 of Schedule A in respect of an intended expropriation under a declaration,

(a) the time after which a notice of intended expropriation filed under subsection 4(4) in respect of the expropriation lapses; and

(b) the time after which a confirming authority, if it has not confirmed the declaration, shall be deemed under subsection 9(5) to have ordered that the declaration be refused;

is extended by the same period.

Effect of order extending time under subsec. 9(5)

24(4)       Where an order is made under subsection (1) extending the time after which a confirming authority, if it has not confirmed the declaration of expropriation, shall be deemed under subsection 9(5) to have ordered the declaration be refused, the time after which the notice of intended expropriation filed under subsection 4(4) in respect of the expropriation lapses is extended by the same period.

Filing of order in L.T.O.

24(5)       A copy of every order made under this section in respect of an intended expropriation under a declaration shall be filed in the Land Titles Office, and the District Registrar of the Land Titles District shall thereupon cause an entry of the order to be made on each certificate of title or abstract of title on which the notice of intended expropriation filed under subsection 4(4) in respect of the declaration was endorsed, but he is not required to give any further notice thereof to any person.

Service of order

24(6)       A copy of every order made under this section in respect of an intended expropriation under a declaration shall be served forthwith by the applicant for the order upon every other person who would be entitled to apply for the order and upon every person upon whom the notice of intended expropriation was required to be served under section 1 of Schedule A.

Authority to compensate for injurious affection

25(1)       An authority that expropriates land or that in the exercise of its lawful powers causes the injurious affection of land shall pay to the owner thereof due compensation in accordance with this Act for the loss or damage thereby caused.

Effect of injurious affection under certain Acts

25(2)       Nothing herein shall be construed as requiring the payment of compensation for the injurious affection of land, where the injurious affection is a result of the application of a provision of The Highways and Transportation Act or The Highways Protection Act and that provision expressly prohibits or denies the right to compensation, rent or other payment therefor.

Effective date for determining compensation

25(3)       The due compensation payable for land expropriated shall be determined as of the date the declaration of expropriation is signed by or on behalf of the expropriating authority.

S.M. 2000, c. 35, s. 39.

Due compensation for land

26(1)       Where land is expropriated, the due compensation payable to the owner therefor shall be the aggregate of

(a) the market value of the land determined as hereinafter set forth;

(b) the reasonable costs, expenses and losses arising out of or incidental to the owner's disturbance determined as hereinafter set forth;

(c) damages for injurious affection as hereinafter set forth; and

(d) the value to the owner of any special economic advantage to him arising out of or incidental to his actual occupation of the land, to the extent that no other provision is made therefor in due compensation.

Special value of residence of owner

26(2)       Where the land expropriated includes a building occupied by the owner thereof as his residence, the due compensation payable for the land shall include

(a) compensation for the value of any improvements made to the land that is not adequately reflected in the market value of the land, and

(b) an amount, in addition to the market value of the land and any amount for improvements under clause (a), necessary to enable the owner to acquire other land that will afford him residential accommodation at least equivalent to that afforded by the land expropriated.

Equivalent reinstatement in certain cases

26(3)       Where land is devoted to a purpose of such a nature that there is no general demand or market for land for that purpose, and the owner intends in good faith to relocate in some other place, the due compensation shall be assessed on the basis of the reasonable cost of equivalent reinstatement.

Market value defined

27(1)       The market value of land is the amount that the land might reasonably be expected to realize if sold in the open market by a willing seller to a willing buyer.

Factors not considered

27(2)       In determining the due compensation payable to the owner no account shall be taken of

(a) the special use to which the authority will put the land; or

(b) any increase or decrease in the value of the land resulting from the imminence of the development in respect of which the expropriation is made or from any imminent prospect of expropriation; or

(c) any depreciation of the value of the land which is attributable to the fact that, whether by way of designation, allocation or other particulars contained in a development plan published by any government or government authority or whether by any other means, an indication has been given that the land is, or is likely, to be acquired by any authority; or

(d) any increase in the value of the land resulting from the land being put to a use that could be restrained by any court or is contrary to law or is detrimental to the health of the occupants of the land or to the public health.

Determining market value in certain partial takings

27(3)       Where only part of the land of an owner is expropriated, and that part is of a size or shape for which there is no general demand or market, the market value of the part taken and the injurious affection of the remainder caused by the taking of the part may be determined as being the market value of the whole of the owner's land less the market value of the remainder.

Unit value of land in certain cases

27(4)       Where an authority expropriates for a highway or a drain a part of a parcel of land that is not within an incorporated city, town or village and that is undeveloped or used for agricultural purposes, the compensation payable to the owner of the parcel in respect of the value of the land expropriated, not including the value of any buildings, fixtures or improvements expropriated of damages for injurious affection or disturbance,

(a) shall be determined, if the part expropriated is less than 5% of the area of the entire parcel; and

(b) may be determined if the part expropriated is 5% or more of the area of the entire parcel;

as the value of the land taken based on a unit price of the value of all the land in the parcel that is of equivalent physical character to the land taken and that, at the date as of which due compensation for the land is to be determined, was actually used for purposes similar to those for which the land taken was used, except that no consideration shall be given to any greater or lesser value of any part of the parcel by reason of the proximity to the work for which the right-of-way is required and excluding the value of any buildings, improvements or fixtures in the parcel.

S.M. 1989-90, c. 91, s. 5.

Compensation for disturbance of owner

28(1)       Subject to subsection (3), the authority shall pay to an owner in respect of disturbance, such reasonable costs, expenses and losses as arise out of or are incidental to the expropriation, including

(a) where the land includes the residence of an owner, other than a tenant, an allowance to compensate for the inconvenience and the cost of finding another residence in the amount of five per cent of the compensation payable in respect of the market value of that part of the land expropriated that is used by the owner for residential purposes, if that part was not being offered for sale on the date the declaration was signed;

(b) where the land taken does not include the owner's residence, the owner's costs of finding premises to replace those expropriated, if the lands were not being offered for sale on the date the declaration was signed;

(c) relocation expenses, including

(i) moving costs, and

(ii) legal fees, land survey costs and other expenses reasonably incurred in acquiring other lands; and

(d) where the land is subject to a security interest, the amount of any loss he is likely to sustain as a result of the acceleration of payment thereof due to the expropriation where the prevailing rate of interest for an equivalent security is greater than the rate of interest provided for by the security interest on the land.

(e) [repealed] S.M. 1993, c. 25, s. 7.

No disturbance considered in certain cases

28(2)       Where the market value of the land is determined upon the basis of a use of the land other than the existing use, the due compensation for the land shall not include compensation for any damages attributable to disturbance that would have been sustained by the owner in putting the land to that other use.

Compensation for disturbance of lessee

28(3)       Where the interest of an owner is a leasehold interest the compensation for disturbance of the owner shall be assessed having regard to

(a) the length of the term of the lease under which the owner is in possession of the land;

(b) the portion of the term remaining;

(c) any right of renewal of the lease;

(d) in the case of a business, the nature of the business; and

(e) the value of the tenant's improvements in the land;

but in no case shall compensation for disturbance be less than the amount of the moving costs reasonably incurred by the owner.

S.M. 1993, c. 25, s. 7.

Loss of goodwill of business

29(1)       Where the commission is satisfied that an owner does not intend to relocate any business carried on upon the land expropriated, and that the relocation thereof would not be feasible, and if the owner's interest in the land has not been valued on a basis inconsistent with its use for the purposes of the business, due compensation may include compensation for the extinction of the goodwill of the business.

Determination of business loss may be deferred

29(2)       Where a claim for compensation for disturbance includes any amount for business loss alleged to result from the relocation or intended relocation of a business from the land expropriated, the determination of the compensation in respect of the business loss shall, unless the authority and the owner otherwise agree, be deferred until the business has been relocated and in operation for six months; and the operating experience of the business following its relocation may be considered inter alia in determining the compensation.

S.M. 1993, c. 25, s. 8.

Injurious affection in partial takings

30(1)       Compensation for injurious affection where an authority expropriates part of the land of an owner shall consist of the amount of

(a) any reduction in market value of the remaining land of the owner caused by the expropriation of the part;

(b) the damages sustained by the owner as a result of the existence and the use but not the construction of the works upon the part of the land expropriated; and

(c) such other damages sustained by the owner as a result of the existence, but not the construction or use, of the works as the authority would otherwise be responsible for in law if the existence of the works were not under the authority of a statute.

Partial taking defined

30(2)       For the purposes of this section it shall be deemed that part of the lands of an owner is expropriated only where the owner from whom land is expropriated retains land contiguous to that expropriated or retains land of which the value was enhanced by unified ownership and unity of use with that expropriated.

Due compensation to include amount for injurious affection

30(3)       Compensation under this section shall be determined in the proceedings for the determination of and as part of the due compensation payable for the land expropriated.

Injurious affection where no land taken

31(1)       Due compensation for injurious affection where an authority does not acquire part of the land of an owner shall consist of the amount of such damages sustained by the owner, including any reduction in the market value of the land, as are the result of the existence, but not the construction or use, of the works and for which the authority would be responsible in law if the works were maintained otherwise than pursuant to the authority of a statute.

Time for making claim limited

31(2)       Subject to subsection (3), a claim for due compensation under this section shall be made by the person suffering the damage or loss by application to the court within two years after the work is first used for the purpose for which it was constructed or acquired or after it has been substantially completed, and if not so made the right to compensation is forever barred.

Saving rights of persons under disability

31(3)       Where the person whose land is injuriously affected is an infant, a mental incompetent, or a person incapable of managing his or her affairs, the person's claim for compensation shall be made before the expiration of two years after the disability ceases, or where the person dies while under the disability, within two years after the death, and, if not so made, the right to compensation is forever barred.

31(4)       [Repealed] S.M. 1993, c. 25, s. 9.

R.S.M. 1987 Supp., c. 4, s. 10; S.M. 1993, c. 25, s. 9.

Betterment considered

32          The value of any advantage to the lands or the remaining lands of an owner derived from the works for which part of the lands of the owner was expropriated or by which the lands were injuriously affected shall be set-off, but only against the amount of the damages for injurious affection.

Payment for security interests

33(1)       Where land that is expropriated is subject to a security interest the right of the owner of the security interest to be paid the debt thereby secured is in accordance with this section and not otherwise.

Due compensation in place of land

33(2)       The portion of the due compensation payable for the land that is not compensation for disturbance shall stand in place of the land for, and shall be applied in satisfaction pro tanto of, a security interest thereon in accordance with its priority.

Satisfaction of security interests and debt

33(3)       Where the amount outstanding on a debt secured by a security interest is greater than the amount of the compensation available for its satisfaction as provided in subsection (2), the balance of the principal amount of the debt not thereby satisfied is forever discharged and extinguished to the extent that

(a) the original amount of the debt was greater than the amount of money actually advanced to or for the account of the debtor; or

(b) the value of the consideration actually paid by the owner of the security interest for the acquisition thereof and of the debt thereby secured was less than the amount of the principal and interest outstanding on the debt at that time;

whichever is the lesser, or in any case where the debt secured arose in respect of the purchase price payable for the land and the owner of the security interest was the vendor of the land or his nominee, to the extent that the amount of the purchase price exceeded the market value of the land at that time, as market value would be determined under this Act.

Disturbance of security interests

33(4)       The owner of a security interest shall be paid by an authority for the disturbance of his security interest

(a) the lesser of

(i) the amount of any bonus for early payment provided for by the terms of the security interest in respect of the amount of principal paid before it is due, or

(ii) the amount of three months interest on the amount of principal paid before it is due calculated at the rate provided for by the terms of the security interest; and

(b) any loss he is likely to sustain as a result of the acceleration of payment due to the expropriation where the prevailing rate of interest for an equivalent security interest is lower than the rate of interest provided for by his security interest.

Payment for security interest on partial taking

33(5)       Where land that is subject to a security interest is expropriated in part or is injuriously affected, the portion of the due compensation payable therefor that is not compensation for disturbance shall be applied in satisfaction pro tanto of the security interest in accordance with its priority in an amount that is in the same ratio to that portion of the compensation as the balance outstanding on the security interest at the date of the expropriation or injurious affection is to the market value of the entire land; but the amount so determined shall be reduced by the amount of any payments made on account of principal of the debt after the date of expropriation or injurious affection.

Conditions of security interest varied

33(6)       Notwithstanding any term or condition of a security interest, the expropriation of the land that is subject to a security interest

(a) does not constitute an act of default under the security interest or otherwise in respect of the debt thereby secured; and

(b) accelerates the repayment of the debt thereby secured to the extent of the amount of the compensation available to be paid in satisfaction thereof as in this section provided, but no more.

Debt under security interest preserved

33(7)       Except as provided in this section, the liability of any person to repay any debt is not diminished or changed by the expropriation of the land against which the security interest for the payment of the debt was held.

Authority may undertake to mitigate

34(1)       At any time before compensation is determined by the commission under section 15 or by the court under section 31, the authority may, in mitigation of any injurious affection of land or other damage, undertake to do any or all of the following:

(a) to abandon or grant to the owner a portion of the land being expropriated or any other land of the authority, or any easement, servitude or privilege in respect of the land;

(b) to construct and maintain a work for the benefit of the owner of the land being expropriated;

(c) to make an alteration or addition to the works for which the land was expropriated;

and the commission or court shall take any such undertaking into consideration in determining the compensation.

Form and service of undertaking

34(2)       An undertaking made under subsection (1) shall be in writing, signed on behalf of the authority, served on the owner by the authority, and, where the matter is before the commission or the court for the determination of compensation, filed with the commission or court by the authority.

Securing performance of undertaking

34(3)       The commission or court may, in determining compensation, impose such terms and conditions as it considers necessary or advisable to secure performance of an undertaking made under subsection (1).

Undertaking as part of settlement

34(4)       If the owner in writing accepts an undertaking and the amount of compensation is agreed upon by the owner and authority, the undertaking is binding on the authority and enforceable by the owner in the court.

Undertaking as part of determination

34(5)       If the commission or court, in determining compensation, considers an undertaking made under this section, the undertaking and any terms and conditions imposed under subsection (3) are binding on the authority and enforceable by the owner in the court.

S.M. 1993, c. 25, s. 10.

Interest payable by authority

35(1)       An authority that expropriates land shall pay interest compounded semi-annually on January 1 and July 1 in each year on the amount of compensation payable to the owner of the land at the prejudgment rate payable under Part XIV of The Court of Queen's Bench Act and determined for those dates under section 79 of that Act.

Time from which interest runs

35(2)       Interest on due compensation for land expropriated or for land injuriously affected shall be calculated from the time the authority enters into possession of the land or from such earlier time as the commission in its discretion may direct.

Only on unpaid compensation

35(3)       Where an authority has paid any amount under this Act as or on account of due compensation to any person or into court, no interest is payable by the authority on or in respect of that amount in respect of any period after the date of the payment.

Commission may increase interest rate as penalty

35(4)       Where the commission is of the opinion that any delay in determining due compensation is attributable in whole or in part to the authority, the commission may order that the interest payable by the authority on the due compensation or any portion thereof shall be at a rate exceeding the rate provided by subsection (1) by an additional rate up to but not exceeding 5% per year, and not at the rate otherwise provided under this Act.

S.M. 1993, c. 25, s. 11; S.M. 2015, c. 43, s. 15.

Voluntary payment of compensation authorized

36          Where land is expropriated or purchased by an authority, the authority may

(a) pay to any person displaced from a house or other building on that land, who is not otherwise entitled to be paid compensation by the authority, such reasonable allowance as it thinks fit towards his expenses in moving therefrom; and

(b) pay to any person carrying on any trade or business in any house or other building on the land, who is not otherwise entitled to be paid any compensation by the authority, such reasonable allowance as it thinks fit towards the loss which, in its opinion, he will sustain by reason of the disturbance of his trade or business consequent upon his having to move from the house or building.

37(1)       [Repealed] S.M. 1993, c. 25, s. 12.

Limitation re declaration registered after September 1, 1993

37(1.1)     Where a claim for compensation arises out of a declaration for expropriation registered on or after September 1, 1993, an application to the commission to determine the compensation payable under this Act shall be made not later than two years after the day the authority enters into possession of the land.

Limitation re declaration registered after July 1, 1980 and before September 1, 1993

37(2)       In respect of claims for due compensation arising out of a declaration for expropriation that was registered after July 1, 1980 and before September 1, 1993, an action to determine the due compensation payable for the land expropriated or for land injuriously affected where part of the land of the owner has been expropriated may be commenced within six years after the date the declaration was registered but not thereafter.

37(3)       [Repealed] S.M. 1993, c. 25, s. 12.

Transitional: where commission has determined compensation

37(4)       Where a claim for compensation arises from a declaration of expropriation that is registered before September 1, 1993 and the commission has before that date determined the compensation payable, the authority may serve notice on the owner that, notwithstanding subsection (2), the owner must

(a) commence proceedings in court for the determination of the compensation payable under this Act, as the Act is immediately before September 1, 1993, within 60 days after the day the notice is served; or

(b) appeal the determination of the commission to The Court of Appeal under section 44 within 40 days after the day the notice is served on the owner;

and that if the owner fails to proceed under clause (a) or (b), the owner is deemed to have accepted the certification of the commission, and any claim to further compensation is barred.

Owner may proceed to Q.B. or Court of Appeal

37(5)       Where the authority serves notice on the owner under subsection (4), the owner may

(a) commence proceedings in court for the determination of compensation by the court under this Act, as the Act is before September 1, 1993, within 60 days after the day the notice is served on the owner; or

(b) appeal the determination of the commission to The Court of Appeal under section 44 within 40 days from the day the notice is served on the owner;

and if the owner fails to proceed under clause (a) or (b), the owner is deemed to have accepted the certification of the commission, and any claim to further compensation is barred.

Transitional: where no proceedings have been commenced

37(6)       Where a claim for compensation arises from a declaration of expropriation that is registered before September 1, 1993, and no proceedings have been commenced under this Act, the authority may serve notice on the owner that, notwithstanding subsection (2),

(a) for the determination of compensation by the court under this Act, as the Act is immediately before September 1, 1993, the owner must commence proceedings in court within 60 days after the day on which the notice is served on the owner; and

(b) the owner may not thereafter commence proceedings in court, but may apply to the commission under section 15 for the determination of compensation, subject to the time limitation set out in subsection (2).

Owner may proceed to court or commission

37(7)       Where the authority serves notice on the owner under subsection (4), the owner may

(a) commence proceedings in court, within 60 days after the day the notice is served on the owner, for the determination of compensation by the court under this Act, as the Act is before September 1, 1993; or

(b) make application to the commission under section 15 for the determination of compensation, subject to the time limitation set out in subsection (2).

Transitional: where court proceedings commenced without commission determination

37(8)       Where before September 1, 1993, a proceeding that is subject to subsection (2) was commenced in court to determine the compensation payable and no hearing took place before the commission, no application to the commission to determine the compensation may be made unless the owner and authority agree to discontinue the proceedings in court, and an application to the commission to determine the compensation payable may then be made within the time limitation in subsection (2) or within 60 days after the day the proceedings in court are discontinued, whichever is the later.

Discontinuance of court proceeding bars claim

37(9)       When the owner and authority agree to discontinue proceedings in court under subsection (8), an application to the court for determination of the compensation payable is thereafter barred.

S.M. 1993, c. 25, s. 12.

38          [Repealed]

S.M. 1988-89, c. 28, s. 4; S.M. 1993, c. 25, s. 13.

Commission may join claims

39          Where more than one interest in land exists, the commission may, upon the application of the authority, determine the compensation payable for each interest in one proceeding.

S.M. 1993, c. 25, s. 14.

40 to 43    [Repealed]

S.M. 1993, c. 25, s. 15.

Appeal of certified amount to Court of Appeal

44(1)       A party to a proceeding before the commission may appeal the amount certified as compensation payable to The Court of Appeal within 40 days after the day the commission certifies the amount under subsection 15(2), or within seven days from the day the commission issues a decision or certifies an amount under subsection 15(5), whichever is the later.

Powers of Court of Appeal

44(2)        An appeal under subsection (1) may be made on questions of law or fact or mixed law and fact, and The Court of Appeal may

(a) refer any matter back to the commission for determination; or

(b) make any determination that the commission has the power to make.

Costs

44(3)       The costs of an appeal are in the discretion of The Court of Appeal, and the court may order that costs be awarded to the owner and assessed in accordance with subsection 15(6) where the owner's appeal is successful or where the appeal of an authority is unsuccessful.

S.M. 1993, c. 25, s. 16.

Due compensation stands in stead of land

45          The due compensation mutually agreed upon or determined by the commission for land expropriated stands in the stead of the land, and any claim to or encumbrance upon the land is, as respects the authority, converted into a claim to or upon the compensation and no longer affects the land.

S.M. 1993, c. 25, s. 17.

Rent may be abated

46(1)       Subject to subsection (2), where part only of the interest of a lessee is expropriated, the lessee's obligation to pay rent under the lease shall be abated pro tanto, as determined by the court.

Frustration of lease

46(2)       Where all the interest of a lessee in land is expropriated or where part of the lessee's interest is expropriated and the expropriation renders the remaining part of the lessee's interest unfit for the purposes of the lease, as determined by the court, the lease shall be deemed to be frustrated from the date the lessee went out of possession.

Successors in title bound

47          The payment of due compensation for injurious affection and the payment of due compensation for land that includes compensation for injurious affection satisfies the claim of the owner and his successors in interest in respect of all damage and loss for or arising out of the injurious affection.

Authority may make payment into court

48(1)       Where compensation has been determined under this Act or settled by the parties, but the authority is in doubt as to the person entitled to receive the compensation or is unable to effect payment of the compensation, the authority may, upon filing an application in court, pay the compensation into court.

Authority to give notice to claimants

48(2)       Upon filing an application under subsection (1), the authority shall give notice to any person claiming an interest in the compensation or any estate, right or interest in or to the land, and the court may direct the authority to give notice of the application to such other persons and in such form as the court may direct.

Court may order particulars filed

48(3)       The court may require any person claiming an interest in the compensation or an estate, right or interest in the land to file particulars of the claim in the court within a time and in a manner required by the court.

Court to adjudicate claims

48(4)       The court shall adjudicate every claim filed in respect of the money paid into court or in respect of an estate, right or interest in the land, and may order distribution of the money to satisfy the claim.

Effect of order of distribution

48(5)       An order of distribution in proceedings under this section forever bars any claim to the land or any part of the land and any mortgage, charge or encumbrance on the land, and by its order the court may give such directions for the distribution, payment or investment of the money and for securing the rights of any person entitled to the money as the court considers necessary or advisable.

Where no claim is filed for money

48(6)       If no claim is filed for compensation paid into court within two years after the day the money is paid into court, the court may, on the motion of the authority, order that the compensation and any interest accrued on it be paid to the authority without requiring that further notice be given and, where the court so orders, any claim to the compensation is barred.

S.M. 1993, c. 25, s. 18.

Payment where compensation less than $1,000.

49          Where the owner who is entitled to convey the land that has been expropriated or injuriously affected and the authority agree as to the due compensation or the compensation has been determined and in either case it does not exceed $1,000., the authority may pay the compensation to the owner who is entitled to convey the land, saving always the rights of any other person to the due compensation as against the person receiving it, and such payment discharges the authority from all liability in respect thereof.

Abandonment of expropriation

50(1)       Where, at any time before the due compensation payable upon an expropriation is paid in full, the land or any part thereof is found to be unnecessary for the purposes of the authority, or it is found that a more limited estate or interest therein only is required, the authority shall so notify each owner of the land, or estate or interest, who has been served or is entitled to be served with the notice of expropriation, and each of them may by writing elect

(a) to take back the land, estate or interest, in which case he has the right to compensation for consequential damages; or

(b) to require the authority to retain the land, estate or interest, in which case he has the right to due compensation therefor.

Effect of abandonment

50(2)       Where all the owners elect to take back the land, estate or interest under clause (1)(a), the authority may, by an instrument signed by it and registered in the land titles office and served on each owner, declare that the land or part thereof is not required and is abandoned by the authority or that it retains only such limited estate or interest as is mentioned in the instrument, and thereupon

(a) the land declared to be abandoned revests in the owner from whom it was expropriated and those entitled to claim under him; or

(b) in the event of a limited estate or interest only being retained by the authority, the land so revests subject to such limited estate or interest.

Restriction on disposal of expropriated land

51(1)       Where an authority has expropriated part of a parcel of land and, finding it no longer requires the land or a part thereof, decides to dispose of the land or a part thereof, if the owner of the parcel at the time of expropriation is still at the time of disposal the owner of the unexpropriated part of the parcel, the authority shall not, without the approval of the confirming authority, which in the case of a municipality or school division or school district may be given by resolution of the council or board thereof, dispose of the surface of the lands or any part of the surface of the lands without giving the owner from whom the land was expropriated the first chance to repurchase the lands on the terms of the best offer received by the authority.

Application of subsection (1)

51(2)       Subsection (1) does not apply to the sale or disposal of any building, improvement or fixture on the land at the time of expropriation.

Right to entry for survey, etc.

52          The authority has, subject to liability for damages occasioned by the exercise of its right and to any Act of the Legislature regulating its power, the right, with or without the consent of the owner

(a) to enter upon the land and make such surveys, examinations and other arrangements as are necessary for locating and setting out the site or proposed site of any works and the boundaries thereof; and

(b) upon notice to any person in actual occupation of the land,

(i) to enter upon the land for the purpose of making an appraisal of the value of the land or any interest therein, or

(ii) to enter upon the land for the purpose of conducting an investigation referred to in section 2.1 and, in the course of that investigation, to drill holes, obtain samples of the soil, air or water or plant or animal life or do any other thing that, in the opinion of the authority, is necessary to enable it to determine the existence, nature or extent of any contamination of the site.

S.M. 1996, c. 40, s. 68.

Appointment of personal representative

53(1)       Where in any proceeding under this Act a trustee, guardian, or other person representing any person under a disability or any other person, including an unborn issue, is unwilling to act on his or their behalf, or where in any proceeding under this Act any such person, including an unborn issue, or an unascertained person or an unascertained class of persons is not represented by a trustee or guardian, the court may, after such notice as it may direct, appoint a trustee, guardian, or other person to act and receive all notices and other documents and make or give any contract, agreement, conveyance, release or receipt on his or their behalf for the purposes of this Act.

Where owner cannot be found

53(2)       Where an owner of any land expropriated or injuriously affected is unknown or cannot be found or for any reason is not represented, the court may, after such notice as it directs, appoint a person to act and receive all notices and other documents and make or give any contract, agreement, conveyance, release, or receipt on his behalf for any of the purposes of this Act.

Act of representative binding

53(3)       Any act done or contract, agreement, conveyance, release, or receipt made or given by a person, appointed under this section binds for all purposes the person, persons, or class, including unborn issue, on behalf of whom the act was done or agreement, conveyance, release or receipt was made or given.

Mode of service

54(1)       Where any notice or other document or a copy thereof is by this Act required to be given to or served upon a person or an authority, the notice, document or copy shall be given or served

(a) in the case of a person, either personally or by being sent to that person by registered mail addressed to him at his latest known address, or if that person is unknown or if his address is unknown, by it being published once a week for three consecutive weeks in a newspaper having general circulation in the locality in which the land concerned is situated; and

(b) in the case of an authority, by it being left at, or by it being sent by prepaid registered mail to, the office of the authority.

Effective date of service by mail or publication

54(2)       Service shall be deemed to be made

(a) where service is made by registered mail, on the second day after the day of mailing; and

(b) where service is made by publication, on the day of the last required publication.

Regulations

55          The Lieutenant Governor in Council may make regulations

(a) prescribing forms for the purposes of this Act and providing for their use;

(b) prescribing procedures respecting submissions to and hearings by an inquiry officer and the commission; and

(c) prescribing fees and charges to be paid by authorities in respect of proceedings or any class of proceedings before the commission.

S.M. 1993, c. 25, s. 19.