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S.M. 1993, c. 25
The Expropriation Amendment Act
(Assented to July 27, 1993)
HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:
The Expropriation Act is amended by this Act.
Subsection 1(1) is amended by adding the following definition in alphabetical order:
"commission" means The Land Value Appraisal Commission established under The Land Acquisition Act; (« Commission »)
Subsection 10(1) is amended by adding "with the Act under which the land is to be expropriated, or" after "failed to comply".
Section 15 is repealed and the following is substituted:
Application to commission to determine compensation
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
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.
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
The authority shall pay any fee or charge that is prescribed in respect of a proceeding under subsection (2).
Commission may vary certified amount
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
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
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.
Subsection 16(6) is repealed and the following is substituted:
Offer to be held open for acceptance
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.
Sections 18 and 19 are repealed.
Subsection 28(1) is amended by adding "and" at the end of subclause (c)(ii), by striking out "and" at the end of clause (d) and by repealing clause (e).
Subsection 29(1) is amended by striking out "court" and substituting "commission".
Subsection 31(2) is amended
(a) by striking out "in writing, giving particulars of the claim, before the expiration of two years" and substituting "by application to the court within two years"; and
(b) by adding "or" after "acquired".
Section 34 is repealed and the following is substituted:
Authority may undertake to mitigate
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
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
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
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
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.
Subsection 35(1) is repealed and the following is substituted:
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 Queen's Bench Act and determined for those dates under section 79 of that Act.
Subsection 35(2) is amended by striking out "court" and substituting "commission".
Subsection 35(4) is amended by striking out "court" wherever it occurs in the section heading and in the subsection, and substituting "commission".
The following is added after subsection 37(1):
Limitation re declaration registered after September 1, 1993
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.
Subsection 37(2) is amended
(a) by repealing the section heading and substituting "Limitation re declaration registered after July 1, 1980 and before September 1, 1993"; and
(b) by adding "and before September 1, 1993" after "July 1, 1980".
The following is added after subsection 37(3):
Transitional: where commission has determined compensation
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
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
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
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
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
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.
Section 39 is repealed and the following is substituted:
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.
Sections 40 to 43 are repealed.
Section 44 is repealed and the following is substituted:
Appeal of certified amount to Court of Appeal
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.
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.
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.
Section 45 is amended by striking out "court" and substituting "commission".
Section 48 is repealed and the following is substituted:
Authority may make payment into court
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
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
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.
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
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
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.
Clause 55(b) is amended by striking out "The Land Value Appraisal Commission" and substituting "the commission".
Clause 55(c) is amended by striking out "the Land Value Appraisal Commission" and substituting "the commission".
Form 3 of Schedule B is repealed.
This Act comes into force on September 1, 1993.