Executive Summary: Key Legal and Evidentiary Issues

• Jurisdiction of the Land and Property Rights Tribunal to hear claims for costs incurred before a formal expropriation was the central issue.

• The appellant’s claim for reimbursement of approximately $100,000 in legal and other costs under sections 29 and 39 of the Expropriation Act was challenged.

• The respondent altered its grounds for the motion to strike in its rebuttal brief, raising procedural fairness concerns.

• The effect of the City’s filing of a Notice of Intention to Expropriate (NOITE) after the motion to strike was filed was not addressed by the Tribunal.

• The Tribunal’s failure to respond to the appellant’s argument regarding mootness due to the NOITE was found unreasonable by the Court of Appeal.

• The Court of Appeal set aside the Tribunal’s order striking the appellant’s pleading and the costs order, granting the appellant its costs of the appeal.

Background and facts of the case

Condominium Corporation No. 9511752 (the appellant) filed a notice of motion seeking reimbursement of legal and other fees allegedly incurred as a result of an expropriation process initiated by the City of Calgary (the respondent). The appellant alleged that from 2017 to 2021, the City communicated its intention to acquire the appellant’s property interests and indicated it would proceed with a formal expropriation under the Expropriation Act, RSA 2000, c E-13, if an alternative agreement could not be reached. In April 2021, the City publicly stated, and in June 2021 directly communicated to the appellant, that it no longer intended to proceed with compulsory acquisition.

On July 26, 2022, the appellant filed a notice of motion with the Land and Property Rights Tribunal, claiming approximately $100,000 under sections 29 and 39 of the Act for legal and other costs incurred from 2017 to 2021. Before the appellant filed any affidavit evidence, the City filed a motion on September 2, 2022, to strike and/or dismiss the claim, arguing the Tribunal had no jurisdiction because no Notice of Intention to Expropriate (NOITE) had been filed at the Alberta Land Titles Office, nor had any statutory steps toward expropriation been taken, and no interest in the appellant’s land had been acquired.

The City did not file affidavit evidence in support of its motion, relying solely on a record from the Alberta Land Titles Office showing no NOITE had been registered. In its rebuttal brief, the City raised a new ground for the motion to strike, arguing that jurisdiction depended on whether there had been a “taking” of an interest in land, as defined in section 1(g) of the Act.

The appellant requested a dispute resolution conference (DRC) due to procedural fairness concerns arising from the City’s new position. At the DRC on December 15, 2022, the City refused to consent to the appellant filing further written argument. The appellant then filed a further notice of motion on January 16, 2023, seeking the opportunity to respond. The Tribunal found the City had fundamentally changed its position and allowed supplementary submissions, awarding costs of the procedural motion to the appellant under section 39 of the Act, to be assessed at the conclusion of the appellant’s motion for reimbursement.

On March 9, 2023, the City issued a NOITE to the appellant. The appellant filed a Notice of Objection on June 7, 2023, which was heard in July and August 2023 by an inquiry officer. An Inquiry Report was issued on August 21, 2023. As of October 3, 2023, the certificate of approval related to the NOITE was pending registration on the appellant’s Land Titles Certificate.

In supplementary submissions filed on October 6, 2023, the appellant included the NOITE and Inquiry Report, arguing there was no longer a live controversy regarding the motion to strike due to the City’s decision to file the NOITE before the application had been decided.

On March 28, 2024, a single member Panel granted the City’s motion to strike, holding that the Tribunal had no jurisdiction to hear the appellant’s claim for reimbursement. The Panel stated that its decision did not affect the merit of the appellant’s claim, noting a NOITE had been issued, and declined to grant costs to either party.

Discussion of policy terms and clauses at issue

The dispute involved the interpretation and application of the Expropriation Act, RSA 2000, c E-13, specifically the definition of “expropriation” as the “taking of land” in section 1(g), and the Tribunal’s jurisdiction to award compensation under sections 29 and 39 for costs incurred before a formal expropriation.

Outcome and reasoning of the Court of Appeal

The Court of Appeal found that the Tribunal’s decision was unreasonable because it failed to address the appellant’s argument that the City’s filing of the NOITE removed the live controversy underlying the City’s motion to strike. The Court noted that administrative decision-makers must respond to the parties’ central arguments. The Tribunal focused on jurisdiction without considering whether the dispute had become moot after the NOITE was filed.

The Court of Appeal set aside the Tribunal’s order striking the appellant’s pleading and the costs order. The appeal was granted, and the appellant was entitled to its costs of the appeal under Rule 14.88. The parties retain the ability to claim costs at a later stage in the proceedings relating to the appellant’s claim for reimbursement of fees and other costs. No exact amount was ordered or granted at this stage, but the successful party on appeal was Condominium Corporation No. 9511752.