Marginal note:Rules for determining value
26 (1) The rules set out in this section shall be applied in determining the value of an expropriated interest or right.
Marginal note:Market value defined
(2) Subject to this section, the value of an expropriated interest or right is its market value, being the amount that would have been paid for the interest or right if, at the time of its taking, it had been sold in the open market by a willing seller to a willing buyer.
Marginal note:If owner or holder required to give up occupation
(3) If the owner or holder of an expropriated interest or right was in occupation of any land at the time the notice of confirmation was registered and, as a result of the expropriation, it has been necessary for them to give up occupation of the land, the value of the expropriated interest or right is the greater of
(a) the market value of that interest or right determined as set out in subsection (2), and
(b) the aggregate of
(i) the market value of that interest or right determined on the basis that the use to which the expropriated interest or right was being put at the time of its taking was its highest and best use, and
(ii) the costs, expenses and losses arising out of or incidental to the owner’s or holder’s disturbance, including moving to other premises, but if those costs, expenses and losses cannot practically be estimated or determined, there may be allowed in their place a percentage, not more than 15, of the market value determined as set out in subparagraph (i),
plus the value to the owner or holder of any element of special economic advantage to them arising out of or incidental to their occupation of the land, to the extent that no other provision is made by this paragraph for the inclusion of that element in determining the value of the expropriated interest or right.
Marginal note:If Crown has taken physical possession of land
(4) If the Crown has taken physical possession or made use of the land referred to in subsection (3) on the expiration of a period of notice to the owner or holder shorter than the 90 days mentioned in paragraph 19(1)(c), there shall be added to the value of the expropriated interest or right otherwise determined under this section an additional amount equal to 10 per cent of that value.
Marginal note:If specially designed building erected on land
(5) Despite subsection (3), if any parcel of land to which a notice of confirmation relates had any building or other structure erected on it that was specially designed for use for the purpose of a school, hospital, municipal institution or religious or charitable institution or for any similar purpose, the use of which building or other structure for that purpose by the owner or holder has been rendered impracticable as a result of the expropriation, the value of the expropriated interest or right is, if that interest or right was and, but for the expropriation, would have continued to be used for that purpose and at the time of its taking there was no general demand or market for that interest or right for that purpose, the greater of
(a) the market value of the expropriated interest or right determined as set out in subsection (2), and
(b) the aggregate of
(i) the cost of any reasonably alternative interest in land or immovable real right for that purpose, and
(ii) the cost, expenses and losses arising out of or incidental to moving to and re-establishment on other premises, but if those costs, expenses and losses cannot practically be estimated or determined, there may instead be allowed a percentage, not exceeding 15, of the cost referred to in subparagraph (i),
minus the amount by which the owner or holder has improved, or may reasonably be expected to improve, their position through re-establishment on other premises.
Marginal note:If Crown has taken physical possession of land
(6) If the Crown has taken physical possession or made use of the parcel of land referred to in subsection (5) on the expiration of a period of notice to the owner or holder shorter than the 90 days mentioned in paragraph 19(1)(c), there shall be added to the value of the expropriated interest or right otherwise determined under this section an additional amount equal to 10 per cent of that value.
Marginal note:Additional factors
(7) For the purposes of subparagraphs (3)(b)(ii) and (5)(b)(ii), consideration shall be given to the time and circumstances in which a former owner or holder was allowed to continue in occupation of the land after the Crown became entitled to take physical possession or make use of it, and to any assistance given by the Minister to enable the former owner or holder to seek and obtain alternative premises.
Marginal note:Land used for residence
(8) If an expropriated interest or right was, immediately before the registration of a notice of confirmation, being used by its owner or holder for the purposes of their residence and the value of the interest or right otherwise determined under this section is less than the minimum amount sufficient to enable the owner or holder, at the earlier of
(a) the time of payment to them of any compensation in respect of the interest or right, otherwise than pursuant to any offer made to them under section 16, and
(b) the time when the Crown became entitled to take physical possession or make use of the land to the extent of the expropriated interest or right,
to relocate their residence in or on premises reasonably equivalent to the premises expropriated, there shall be added to the value of the interest or right otherwise determined under this section the amount by which that minimum amount exceeds that value.
Marginal note:Moving and relocation expenses of lessee
(9) If an expropriated interest or right was, immediately before the registration of a notice of confirmation, owned or held by a lessee, there shall be substituted for the amount determined under subparagraph (3)(b)(ii) or (5)(b)(ii), or the amount by which the minimum amount referred to in subsection (8) exceeds the value of the interest or right referred to in the notice of confirmation otherwise determined under this section, as the case may be, any part of that amount that is appropriate having regard to
(a) the length of the term of the lease and the portion of the term remaining at the time at which the determination is relevant;
(b) any right or reasonable prospect of renewal of the term that the lessee had; and
(c) any investment in the land by the lessee and the nature of any business carried on by them on the land.
Marginal note:Land subject to security interest or real security
(10) If an expropriated interest or right was, immediately before the registration of a notice of confirmation, subject to an interest in land or immovable real right held by its owner or holder as security only, in this subsection called a “security interest” or, in Quebec, a “real security”,
(a) the value of the expropriated interest or right is the aggregate of
(i) the value of the interest or right determined under this section as though it had not been subject to any security interest or real security, and
(ii) the amount of any loss or anticipated loss to the owner or holder of the expropriated interest or right resulting from a difference in rates of interest during the remainder of the period for which any principal amount payable under the terms of the security was advanced, that difference to be calculated on the basis of an assumed rate of interest not greater than the prevailing rate of interest for an equivalent security, to the extent that no other provision is made by this section for the inclusion of an amount in respect of the loss or anticipated loss in determining the value of the expropriated interest or right,
less the value of each security interest or real security to which the expropriated interest or right was subject, determined as provided in paragraph (b) but as though no amount were included by virtue of subparagraph (b)(ii);
(b) the value of the security interest or real security is the aggregate of
(i) the principal amount outstanding under the terms of the security, and any interest due or accrued under those terms, at the time of the registration of the notice of confirmation, and
(ii) an amount equal to three times the interest element, calculated as a monthly amount, of any payment of interest or of principal and interest payable under the terms of the security at the rate in effect under the terms of the security immediately before the registration of the notice of confirmation,
and if the expropriated interest or right was subject to more than one security interest or real security, the value of each security interest or real security is to be determined in the order of its rank but in no case is the value of any security interest or real security to which an expropriated interest or right was subject to exceed the value of the expropriated interest or right otherwise determined under this section as though it had not been subject to any security interest or real security, less the value of each other security interest or real security the value of which is required by this subsection to be determined in accordance with its ranking; and
(c) if part only of the interest or a more limited right that was subject to a security interest or real security was expropriated, the value of the security interest or real security is that proportion of its value otherwise determined under this subsection as though the whole of the interest or a less limited right subject to the security interest or real security had been expropriated, that
(i) the value of the part only of the interest or a more limited right, otherwise determined under this subsection as though it had not been subject to any security interest or real security,
is of
(ii) the value of the whole of the interest or a less limited right otherwise determined under this subsection as though it had not been subject to any security interest or real security
less the same proportion of the interest element of any payment made under the terms of the security, between the time of the registration of the notice of confirmation and the time of payment of any compensation in respect of the security interest or real security otherwise than pursuant to any offer made to its owner or holder under section 16.
Marginal note:Factors not to be taken into account
(11) In determining the value of an expropriated interest or right, no account is to be taken of
(a) any anticipated or actual use by the Crown of the land at any time after the expropriation;
(b) any value established or claimed to be established by or by reference to any transaction or agreement involving the lease or disposition of the interest or right, or any part of the interest or a more limited right, where the transaction or agreement was entered into after the registration of the notice of intention to expropriate;
(c) any increase or decrease in the value of the interest or right resulting from the anticipation of expropriation by the Crown or from any knowledge or expectation, before the expropriation, of the public work or other public purpose for which the interest or right was expropriated; or
(d) any increase in the value of the interest or right resulting from its having been put to a use that was contrary to law.
- R.S., 1985, c. E-21, s. 26
- 2011, c. 21, s. 142
- Date modified: