Expropriation Act (R.S.C., 1985, c. E-21)

Marginal note:Set-off and recovery of excess compensation

35 If any compensation has been paid to a person in respect of an expropriated interest or right pursuant to an offer made to them under section 16, the amount so paid to that person is to be deducted from the amount of the compensation adjudged by the Court under this Part to be payable to them in respect of that interest or right, and when the paid amount exceeds the amount so adjudged to be payable, the excess constitutes a debt due to the Crown and may be recovered by the Crown in any court of competent jurisdiction.

Marginal note:Exception

• 35.1 (1) Notwithstanding any other provision of this Act, any dispute as to the compensation payable in respect of an expropriated interest in land described in subsection 4(4) or (5) may be heard and determined only by the Yukon Surface Rights Board under and in accordance with the Yukon Surface Rights Board Act.

• Marginal note:Provisions applicable

  (2) Subsection 16(2) and sections 33, 35 and 36 apply, with such modifications as the circumstances require, in respect of compensation determined by the Yukon Surface Rights Board as if that compensation were compensation adjudged by the Court.

Interest

Marginal note:Definitions

• 36 (1) In this section,

  basic rate

  basic rate means a rate determined in the manner prescribed by any order made from time to time by the Governor in Council for the purposes of this section, being not less than the average yield, determined in the manner prescribed by that order, from Government of Canada treasury bills; (taux de base)

  compensation

  compensation means the amount adjudged by the Court under this Part to be payable in respect of an expropriated interest or right; (indemnité)

  date of possession

  date of possession means the day on which the Crown became entitled to take physical possession or make use of the land to which a notice of confirmation relates; (date de la possession)

  date of the offer

  date of the offer means the day on which an offer was accepted; (date de l’offre)

  offer

  offer means an offer under section 16. (offre)

• Marginal note:Interest payable by Crown

  (2) Interest is payable by the Crown at the basic rate on the compensation, from the date of possession to the date judgment is given, except where an offer has been accepted.

• Marginal note:Interest payable where offer accepted

  (3) Where an offer has been accepted, interest is payable by the Crown from the date of the offer to the date judgment is given,

  • (a) at the basic rate on the amount by which the compensation exceeds the amount of the offer, and

  • (b) in addition, at the rate of five per cent per annum on the compensation, if the amount of the offer is less than ninety per cent of the compensation,

  and where an offer has been accepted after the date of possession, interest is payable at the basic rate on the compensation, from the date of possession to the date of the offer.

• Marginal note:Additional interest where delay in offer

  (4) Where an offer is not made until after the expiration of the applicable period described in paragraph 16(1)(b) for the making of the offer, interest, in addition to any interest payable under subsection (2) or (3), is payable by the Crown at the rate of five per cent per annum on the compensation, from the expiration of that period to the day on which an offer is made.

• Marginal note:Discretion of Court where delay

  (5) Where the Court is of opinion that any delay in the final determination of the compensation is attributable in whole or in part to any person entitled thereto, or that the person has failed to deliver up possession within a reasonable time after demand, the Court may, for the whole or any part of any period for which he would otherwise be entitled to interest, refuse to allow him interest, except that the Court shall not so refuse by reason only that an offer made to him was not accepted.

Entry and Possession

Marginal note:Entry for inspection appraisal

• 37 (1) If a notice of intention has been registered, any person authorized in writing in that behalf by the Minister may, at any reasonable time on notice to a person in occupation of the land to which the notice relates, enter on the land for the purpose of making any inspection of the land that they are authorized by this Part to make, or for the purpose of making an appraisal of the value of the land or any interest in land or immovable real right.

• Marginal note:Prevention, etc., of entry

  (2) Every one who, without lawful excuse, prevents any person from or obstructs or hinders any person in doing any thing that that person is authorized by subsection (1) to do is guilty of an offence punishable on summary conviction.

Marginal note:Warrant for possession

• 38 (1) When the Minister, or a person acting for the Minister, is prevented from entering on or taking physical possession or making use of any land to the extent of any expropriated interest or right under this Part, a judge of the Court or any judge of a superior court of a province may, on proof of the expropriation and, when required, of the right of the Crown to take physical possession or make use of it, and after notice to show cause given in any manner and to any persons who shall be parties to the proceedings that the judge prescribes, issue a warrant in accordance with the form set out in the schedule to the appropriate sheriff directing that the Minister, or a person authorized to act for the Minister, be put in physical possession of the land to the extent of the expropriated interest or right.

• Marginal note:Execution of warrant

  (2) The sheriff shall forthwith execute a warrant issued to him under this section and shall make return of the warrant to the court to which the judge who issued it belongs, and of the manner in which it was executed.

Costs

Marginal note:Costs

• 39 (1) Subject to subsection (2), the costs of and incident to any proceedings in the Court under this Part are in the discretion of the Court or, in the case of proceedings before a judge of the Court or a judge of the superior court of a province, in the discretion of the judge, and the Court or the judge may direct that the whole or any part of those costs be paid by the Crown or by any party to the proceedings.

• Marginal note:Costs payable by the Crown

  (2) If the amount of the compensation adjudged under this Part to be payable to a party to any proceedings in the Court under sections 31 and 32 in respect of an expropriated interest or right does not exceed the total amount of any offer made under section 16 and any subsequent offer made to the party in respect of that interest or right before the commencement of the trial of the proceedings, the Court shall, unless it finds the amount of the compensation claimed by the party in the proceedings to have been unreasonable, direct that the whole of the party’s costs of and incident to the proceedings be paid by the Crown, and if the amount of the compensation so adjudged to be payable to the party exceeds that total amount, the Court shall direct that the whole of the party’s costs of and incident to the proceedings, determined by the Court on a solicitor and client basis, be paid by the Crown.

PART IIUse of Lands

Marginal note:Powers of Minister

40 A Minister, or any other person with the written consent of the Minister, may, on seven days notice sent to the owner thereof,

• (a) enter into and on any land and survey and take levels of the land, and make such borings or sink such trial pits as the Minister or other person deems necessary for any purpose related to a public work;

• (b) enter on any land and deposit thereon earth, stones, gravel, trees, bushes, logs, poles, brushwood or other material required for a public work, or for the purpose of digging up, quarrying and carrying away earth, stones, gravel or other material, and cutting down and carrying away trees, bushes, logs, poles, brushwood or other material therefrom, for the construction, repair or maintenance of a public work;

• (c) make and use all such temporary roads to and from timber, stones, clay, gravel or sand or gravel pits as are required by the Minister or other person for the convenient passing to and from a public work during the construction, repair or maintenance thereof;

• (d) enter on any land for the purpose of making proper drains to carry off water from a public work or for keeping those drains in repair;

• (e) divert or alter, temporarily or permanently, the course of any river or other watercourse or any railway, road, street or other way, or raise or sink its level, in order to carry it over or under, on the level of or by the side of a public work, as the Minister or other person deems necessary for any purpose related to that work; and

• (f) for the purposes of a public work, divert or alter the position of any water pipe, oil or gas pipe, sewer or drain, or any telegraph, telephone or electric wire, pole or tower.

Marginal note:Removal and replacement of wall, fence, etc.

41 Whenever it is necessary, in the construction, repair or maintenance of a public work, to take down or remove any wall or fence of any owner or occupier of land adjoining a public work, or to construct any drain or ditch for carrying off water, the wall or fence shall be replaced as soon as the necessity that caused its taking down or removal has ceased, and after it has been so replaced, or when the drain or ditch is completed, the owner or occupier of the land shall maintain the wall, fence, drain or ditch to the same extent as he might by law be required to do if the wall or fence had never been so taken down or removed, or the drain or ditch had always existed.

Marginal note:Use of explosives

• 42 (1) Where the Crown has contracted with any person for the construction or execution of any public work, or where, by direction of the Governor in Council, or of a Minister within the scope of the powers of the Minister, any officer, employee or agent of the Crown is charged with the construction or execution of any public work, the Governor in Council may, if in the opinion of the Governor in Council it is necessary or expedient that any material be excavated or removed by blasting or the use of explosives, authorize the work to be performed in that manner, notwithstanding that the blasting or explosions may cause damage to land or other property or to the prosecution of any industry or work that is situated in the vicinity of the work or that may be thereby affected.

• Marginal note:Notice and application for review

  (2) Notice of the authorization of any work in the manner set out in subsection (1) shall be sent at least seven days in advance to the owner of any land or other property or to any person carrying on any industry or work that may be affected by the work, and that owner or person may, within seven days after the sending of the notice to him, apply to the Governor in Council or to any person designated by him for a review of the authorization.

• Marginal note:Compensation for damages

  (3) If the construction or execution of a public work is contracted for, then, unless the contract otherwise provides, the amount of compensation payable by the Crown is chargeable to the contractor, and, if not paid by him forthwith on demand, may be recovered from him by the Crown as money paid to the contractor’s use, or may be deducted from any money in the hands of the Crown belonging or payable to the contractor.

Marginal note:Crown liable to pay compensation as though no defence of statutory authority

43 Compensation shall be paid by the Crown to each person by whom any actual loss or damage is sustained by reason of the exercise of any power under this Part, equal to the amount of any such loss or damage for which the Crown would be liable to that person if the power had not been exercised under the authority of a statute.

PART IIIGeneral

Marginal note:Appointment of trustee, etc., to act for persons under disability

• 44 (1) The Court may, when a trustee, guardian or tutor, curator, or someone else representing any person who is incapable or any other persons including issue unborn is unable or unwilling to act on their behalf or where any such person or persons including issue unborn are not so represented, after any notice that the Court may direct, appoint a trustee, guardian or tutor, curator, or other representative to act on their behalf for the purposes of this Act.

• Marginal note:Protection of beneficiaries

  (2) The Court in making any appointment under subsection (1) may give such directions with respect to the disposal, application or investment of any compensation payable under this Act as it deems necessary to secure the interests of all persons having a claim thereto.

• Marginal note:Contract, etc., binding

  (3) Any contract, agreement, release or receipt made or given by any person appointed under subsection (1) and any instrument or act of transfer made or given in pursuance of the contract or agreement is binding for all purposes on the person by whom and any person or persons including issue unborn on behalf of whom the contract, agreement, release or receipt is made or given.