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CONSULTATION DRAFT
Table of Provisions ... continued
Third series of proposals to harmonize federal law with the
civil law of the Province of Quebec and to amend certain Acts
in
order to
ensure that each language version takes into
account
the common law and the
civil law.
EXPROPRIATION ACT
85. (1) The
definitions "expropriated interest"
, "interest in land"
and "owner"
in section 2 of the Expropriation Act are repealed.
(2) The definitions "land"
and "registrar"
in section 2 of the
Act are replaced by the following:
"land"
« bien-fonds »
"land"includes mines, buildings, structures, other things in the nature of fixtures and objects that are immovable within the meaning of Quebec civil law; it also includes minerals whether precious or base, on, above or below the surface, but excludes minerals above the surface in Quebec.
"registrar"
« registrateur »
"registrar"means the officer with whom the titles relating to real property and immovables are registered or recorded.
(3) The definition "enregistrer"
in section 2 of the French version of the Act is replaced by the following:
« enregistrer »
"register"
« enregistrer »S’entend notamment du fait d’inscrire, de produire ou de déposer.
(4) Section 2 of the Act is amended by adding the following in alphabetical order:
"expropriated interest or right"
« droit ou intérêt exproprié »
"expropriated interest or right"means any estate, interest or right that has been lost, in whole or in part, by the registration of a notice of confirmation under Part I;
Expropriation Act
Explanatory Notes
Clause 85: (1) to (3) Existing text of the definitions:
"expropriated interest"means any right, estate or interest that has been lost, in whole or in part, by the registration of a notice of confirmation under Part I;
"interest in land", in relation to land in the Province of Quebec, includes the interest of a lessee therein;
"land"includes buildings, structures and other things in the nature of fixtures and mines and minerals whether precious or base, on, above or below the surface;
"owner", in relation to any expropriated interest, includes the owner of a leasehold interest;
"register"includes file or deposit;
"registrar"means the registrar or master of deeds or land titles or other officer with whom the title to land is registered or recorded.
(5) Section 2 of the Act is renumbered as subsection 2(1) and is amended by adding the following:
Interpretation
(2) For the purposes of this Act,
(a) an interest in land relates to any land in Canada elsewhere than in Quebec;
(b) an immovable real right relates to any land in Quebec and includes the right of a lessee of the land;
(c) an owner of an interest is a person who has a right, estate or interest in any land in Canada elsewhere than in Quebec; and
(d) a holder of a right is a person who has a right in any land in Quebec, including a lessee of the land.
Explanatory Notes
(4) and (5) New.
86. Subsection 4(1) of the Act is replaced by the following:
Authority to expropriate
4. (1) Any interest in land or immovable real right, including any of the interests or rights mentioned in sections 7 and 7.1, that, in the opinion of the Minister, is required by the Crown for a public work or other public purpose may be expropriated by the Crown in accordance with the provisions of this Part.
Explanatory Notes
Clause 86: Existing text of subsection 4(1):
4. (1) Any interest in land, including any of the interests mentioned in section 7, that, in the opinion of the Minister, is required by the Crown for a public work or other public purpose may be expropriated by the Crown in accordance with the provisions of this Part.
1996, c. 10, s. 228
87. (1) Subsections 4.1(1) to (3) of the Act are replaced by the following:
Request by railway company to expropriate
4.1 (1) If a railway company, as defined in section 87 of the Canada Transportation Act, requires an interest in land or immovable real right for the purposes of its railway and has unsuccessfully attempted to purchase the interest or right, the railway company may request the Minister of Transport to have the Minister have the interest or right expropriated by the Crown in accordance with this Part.
Power of Minister
(2) The Minister shall have the interest in land or immovable real right expropriated by the Crown in accordance with this Part if
(a) the Minister of Transport is of the opinion that the interest or right is required by the railway company for its railway and recommends to the Governor in Council that it be expropriated in accordance with this Part; and
(b) the Governor in Council consents to the expropriation of the interest or right.
Deemed opinion
(3) If the Minister of Transport is of the opinion that the interest in land or immovable real right is required by the railway company for its railway, the Minister is deemed to be of the opinion that the interest or right is required by the Crown for a public work or other public purpose.
Explanatory Notes
Clause 87: (1) Existing text of subsections 4.1(1) to (3):
4.1 (1) Where a railway company, as defined in section 87 of the Canada Transportation Act, requires an interest in land for the purposes of its railway and has unsuccessfully attempted to purchase the interest in land, the railway company may request the Minister of Transport to have the Minister have the interest in land expropriated by the Crown in accordance with this Part.
(2) The Minister shall have the interest in land expropriated by the Crown in accordance with this Part where
(a) the Minister of Transport is of the opinion that the interest in land is required by the railway company for its railway and recommends to the Governor in Council that it be expropriated in accordance with this Part; and
(b) the Governor in Council consents to the expropriation of the interest in land.
(3) If the Minister of Transport is of the opinion that the interest in land is required by the railway company for its railway, the Minister is deemed to be of the opinion that the interest in land is required by the Crown for a public work or other public purpose.
1996, c. 10, s. 228
(2) Subsection 4.1(6) of the French version of the Act is replaced by the following:
Garantie
(6) Le ministre peut exiger que la compagnie de chemin de fer fournisse une garantie, selon le montant et les autres modalités qu’il détermine, pour le paiement des frais payables en application du présent article.
1996, c. 10, s. 228
(3) Subsection 4.1(7) of the English version of the Act is replaced by the following:
Vesting
(7) For the purpose of this section, the reference to the Crown in section 15 shall be read as a reference to the railway company that made a request under subsection (1).
1996, c. 10, s. 228
(4) Subsection 4.1(8) of the Act is replaced by the following:
Restriction on alienation
(8) If an interest in land or immovable real right that was vested in the Crown before the expropriation is obtained by a railway company under section 15, the railway company may not alienate that interest or right except to transfer it to the Crown.
Explanatory Notes
(2) to (4) Existing text of subsections 4.1(6) to (8):
(6) The Minister may require the company to provide security, in an amount determined by the Minister and subject to any terms and conditions that the Minister may specify, for the payment of any fees or charges that are or may become payable under this section.
(7) For the purpose of this section, the reference to the Crown in section 15 shall be construed as a reference to the railway company that made a request under subsection (1).
(8) Where an interest in land that was vested in the Crown before the expropriation vests in a railway company pursuant to section 15, the railway company may not alienate that interest except to transfer it to the Crown.
88. Sections 5 to 7 of the Act are replaced by the following:
Notice of intention to expropriate
5. (1) If, in the opinion of the Minister, any interest in land or immovable real right is required by the Crown for a public work or other public purpose, the Minister may request the Attorney General of Canada to register a notice of intention to expropriate the interest or right, signed by the Minister, setting out
(a) a description of the land;
(b) the nature of the interest or right intended to be expropriated and whether the interest or right is intended to be subject to any existing interest in land or immovable real right;
(c) an indication of the public work or other public purpose for which the interest or right is required; and
(d) a statement that it is intended that the interest or right be expropriated by the Crown.
Registration of notice
(2) On receiving from the Minister a request to register a notice of intention described in this section, the Attorney General of Canada shall cause the notice, together with a plan of the land to which the notice relates, to be registered in the office of the registrar for the county, district or registration division in which the land is situated, and, after causing any investigations and searches to be made respecting the state of the title to the land that appear to him or her to be necessary or desirable, the Attorney General of Canada shall provide the Minister with a report setting out the names and latest known addresses, if any, of the persons appearing to have any estate, interest or right in the land, so far as he or she has been able to ascertain them.
Further indication of public purpose
(3) If, in the opinion of the Minister, the interest or right to which a notice of intention described in this section relates is required by the Crown for a purpose related to the safety or security of Canada or a state allied or associated with Canada and it would not be in the public interest to indicate that purpose, a statement in the notice to the effect that the interest or right is required by the Crown for such a purpose is sufficient compliance with paragraph (1)(c) without any other indication.
Further indication of public purpose — additional information
(4) Subject to subsection (3), the Minister shall, for the purposes of sections 9 and 10 and to the extent that it appears to him or her practicable and in the public interest to do so, make available to any person on request any additional information that is available to the Minister with respect to the public work or other public purpose for which the interest or right to which a notice registered under this section relates is required by the Crown.
Error, etc., in notice or plan
6. (1) If a notice or plan registered under section 5 contains any omission, misstatement or erroneous description, a corrected notice or plan may be registered and will be deemed to relate back to the day the original notice or plan was registered.
Validity of notice — nature of the interest or right
(2) A notice registered under section 5 is not invalid by reason only that it does not set out the nature of the interest or right intended to be expropriated and, in that case, the interest or right intended to be expropriated includes all the interests in the land or immovable real rights to which the notice relates.
Validity of notice — existing interest in land or immovable real right
(3) A notice registered under section 5 is not invalid by reason only that it does not set out whether the interest or right intended to be expropriated is intended to be subject to an existing interest in land or immovable real right to which the notice relates, and, if it does not do so, the interest or right intended to be expropriated is not subject to that existing interest or right.
Provincial lands
(4) If it appears to the Attorney General of Canada that any land, interest in land or immovable real right to which a notice registered under section 5 relates belongs to Her Majesty in right of any province, he or she shall immediately cause the attorney general of the province to be notified of the registration and its particulars.
Nature of interests that may be set out in notice — provinces other than Quebec
7. In Canada elsewhere than in Quebec, a notice of intention may set out, as the nature of the interest intended to be expropriated, any estate or interest in land, including, without restricting the generality of the foregoing,
(a) an interest limited as to time or by condition or otherwise;
(b) an easement, profit or other servitude;
(c) any right to, over or in respect of land that might be conferred by the owner of the land, whether or not that right, if conferred by the owner, could be asserted against a subsequent owner of the land;
(d) any restriction on the use of land that might be assumed by covenant or other agreement, whether or not that restriction, if assumed by the owner of the land, could be asserted against a subsequent owner thereof; and
(e) the exclusive possession of land for a limited time or for a definite or indefinite period, subject to any conditions or limitations that may be specified in the notice.
Nature of rights that may be set out in notice — Quebec
7.1 In Quebec, a notice of intention may set out, as the nature of the right intended to be expropriated, any immovable real right.
Explanatory Notes
Clause 88: Existing text of sections 5 to 7:
5. (1) Whenever, in the opinion of the Minister, any interest in land is required by the Crown for a public work or other public purpose, the Minister may request the Attorney General of Canada to register a notice of intention to expropriate the interest, signed by the Minister, setting out
(a) a description of the land;
(b) the nature of the interest intended to be expropriated and whether the interest is intended to be subject to any existing interest in the land;
(c) an indication of the public work or other public purpose for which the interest is required; and
(d) a statement that it is intended that the interest be expropriated by the Crown.
(2) On receiving from the Minister a request to register a notice of intention described in this section, the Attorney General of Canada shall cause the notice, together with a plan of the land to which the notice relates, to be registered in the office of the registrar for the county, district or registration division in which the land is situated, and, after causing such investigations and searches to be made respecting the state of the title to the land as appear to him to be necessary or desirable, the Attorney General of Canada shall furnish the Minister with a report setting out the names and latest known addresses, if any, of the persons appearing to have any right, estate or interest in the land, so far as he has been able to ascertain them.
(3) Where, in the opinion of the Minister, the interest to which a notice of intention described in this section relates is required by the Crown for a purpose related to the safety or security of Canada or a state allied or associated with Canada and it would not be in the public interest further to indicate that purpose, a statement in the notice to the effect that the interest is required by the Crown for such a purpose is sufficient compliance with paragraph (1)(c) without further indication thereof.
(4) Subject to subsection (3), the Minister shall, for the purposes of sections 9 and 10 and to the extent that it appears to him to be practicable and in the public interest to do so, make available to any person on request any additional information that is available to the Minister with respect to the public work or other public purpose for which the interest to which a notice registered under this section relates is required by the Crown.
6. (1) Where a notice or plan registered under section 5 contains any omission, mis-statement or erroneous description, a corrected notice or plan may be registered, which shall be deemed to relate back to the day the original notice or plan was registered.
(2) A notice registered under section 5 is not invalid by reason only that it does not set out the nature of the interest intended to be expropriated and, in that case, the interest intended to be expropriated includes all the interests in the land to which the notice relates.
(3) A notice registered under section 5 is not invalid by reason only that it does not set out whether the interest intended to be expropriated is intended to be subject to an existing interest in the land to which the notice relates, and, where it does not do so, the interest intended to be expropriated is not subject to that existing interest.
(4) Where it appears to the Attorney General of Canada that any land or interest in land to which a notice registered under section 5 relates belongs to Her Majesty in right of any province, he shall thereupon cause the attorney general of the province to be notified of the registration and of the particulars thereof.
7. A notice of intention may set out, as the nature of the interest intended to be expropriated, any estate or interest in land, including, without restricting the generality of the foregoing,
(a) an interest limited as to time or by condition or otherwise;
(b) an easement, profit or servitude;
(c) any right to, over or in respect of land that might be conferred by the owner of the land, whether or not that right, if conferred by the owner, could be asserted against a subsequent owner of the land;
(d) any restriction on the use of land that might be assumed by covenant or other agreement, whether or not that restriction, if assumed by the owner of the land, could be asserted against a subsequent owner thereof; and
(e) the exclusive possession of land for a limited time or for a definite or indefinite period, subject to such conditions or limitations, if any, as may be specified in the notice.
89. (1) The portion of subsection 8(1) of the Act before paragraph (a) is replaced by the following:
Sending of copies and publication of notice
8. (1) If a notice of intention to expropriate an interest in land or immovable real right has been registered, the Minister shall cause a copy of the notice
Explanatory Notes
Clause 89: (1) Relevant portion of subsection 8(1):
8. (1) Where a notice of intention to expropriate an interest in land has been registered, the Minister shall cause a copy of the notice
(2) Subsection 8(3) of the Act is replaced by the following:
Statement regarding right to object
(3) There shall be included in any notice or copy published or sent as described in subsection (1) a statement of the provisions of section 9 as that section applies to the intended expropriation of the interest or right to which the notice relates.
Explanatory Notes
(2) Existing text of subsection 8(3):
(3) There shall be included in any notice or copy thereof published or sent as described in subsection (1) a statement of the provisions of section 9 as that section applies to the intended expropriation of the interest to which the notice relates.
90. Section 9 of the Act is replaced by the following:
Objections
9. Any person who objects to the intended expropriation of an interest in land or immovable real right to which a notice of intention relates may, within 30 days after the day on which the notice is given, serve on the Minister an objection in writing stating the name and address of that person and indicating the nature of the objection, the grounds on which the objection is based and the nature of the interest of that person in the matter of the intended expropriation.
Explanatory Notes
Clause 90: Existing text of section 9:
9. Any person who objects to the intended expropriation of an interest in land to which a notice of intention relates may, within thirty days after the day the notice is given, serve on the Minister an objection in writing stating the name and address of that person and indicating the nature of the objection, the grounds on which the objection is based and the nature of the interest of that person in the matter of the intended expropriation.
91. (1) Subsection 10(6) of the English version of the Act is replaced by the following:
Right to legal counsel
(6) Any person who may be heard at a public hearing under this section may be represented by legal counsel at the hearing.
Explanatory Notes
Clause 91: (1) Existing text of subsection 10(6):
(6) Any person who may be heard at a public hearing under this section may be represented by counsel at the hearing.
(2) Subsection 10(11) of the Act is replaced by the following:
Order if possession by Crown urgently required
(11) If, before a notice of intention is registered, the Governor in Council is of the opinion that the physical possession or use by the Crown of the land to the extent of the interest or right intended to be expropriated is, by reason of special circumstances, urgently required and that to order that a public hearing be conducted with respect to it would occasion a delay prejudicial to the public interest, the Governor in Council may direct that no order be made by the Minister under subsection (1) with respect to the intended expropriation and, in which case, a statement to that effect shall be included in the notice of intention.
Explanatory Notes
(2) Existing text of subsection 10(11):
(11) Where, before a notice of intention is registered, the Governor in Council is of the opinion that the physical possession or use by the Crown of the land to the extent of the interest intended to be expropriated is, by reason of special circumstances, urgently required and that to order that a public hearing be conducted with respect thereto would occasion a delay prejudicial to the public interest, the Governor in Council may direct that no order be made by the Minister under subsection (1) with respect to the intended expropriation and, in which case, a statement to that effect shall be included in the notice of intention.
92. Subsection 11(3) of the Act is replaced by the following:
If more limited interest or right only required
(3) Whenever, at the time of confirming an intention to expropriate an interest in land or immovable real right, the Minister is of the opinion that a more limited interest or right is required by the Crown for a public work or other public purpose, the Minister may confirm the intention to expropriate the more limited interest or right, in which case the Minister shall be deemed to have abandoned the intention to expropriate the remainder of the interest in land or immovable real rights.
Explanatory Notes
Clause 92: Existing text of subsection 11(3):
(3) Whenever, at the time of confirming an intention to expropriate an interest in land, the Minister is of the opinion that a more limited interest only is required by the Crown for a public work or other public purpose, the Minister may confirm the intention to expropriate the more limited interest, in which case the Minister shall be deemed to have abandoned the intention to expropriate the remainder of the interest.
93. Sections 12 and 13 of the Act are replaced by the following:
Notice of abandonment of intention
12. (1) If the Minister has abandoned an intention to expropriate an interest in land or immovable real right otherwise than by confirming an intention to expropriate a more limited interest or right in it, the Minister shall immediately cause a notice of abandonment of the intention to be sent
(a) to each of the persons then appearing to have any estate, interest or right in the land, so far as the Attorney General of Canada has been able to ascertain them, and each other person who served an objection on the Minister under section 9; and
(b) to the Attorney General of Canada, who shall immediately confirm the abandonment by causing the notice to be registered in the office of the registrar where the notice of intention was registered.
Right of owner or holder if abandonment of intention
(2) If an intention to expropriate an interest in land or immovable real right, or the remainder of the interest or rights, has been abandoned, compensation in accordance with this Part shall be paid by the Crown to any person who was the owner or holder of the interest or right or of the remainder of the interest or rights at the time when the notice of intention was registered.
Copy of report and reasons to be sent on request
13. If the Minister, after receiving and considering a report of a hearing officer appointed to conduct a public hearing with respect to an objection served on the Minister by any person under section 9, has confirmed an intention to expropriate an interest in land or immovable real right, or a more limited interest or right in it, in the manner provided in section 14, the Minister shall, at the written request of the person who served the objection, provide that person with a copy of the report of the hearing officer and, if effect was not given to the objection, a statement of the reasons that the Minister had for not giving it effect.
Explanatory Notes
Clause 93: Existing text of sections 12 and 13:
12. (1) Where the Minister has abandoned an intention to expropriate an interest in land otherwise than by confirming an intention to expropriate a more limited interest therein, the Minister shall forthwith cause a notice of abandonment of the intention to be sent
(a) to each of the persons then appearing to have any right, estate or interest in the land, so far as the Attorney General of Canada has been able to ascertain them, and each other person who served an objection on the Minister under section 9; and
(b) to the Attorney General of Canada, who shall thereupon confirm the abandonment by causing the notice to be registered in the office of the registrar where the notice of intention was registered.
(2) Where an intention to expropriate an interest or remainder of an interest in land has been abandoned, compensation in accordance with this Part shall be paid by the Crown to the person who was the owner of the interest or remainder at the time when the notice of intention was registered.
13. Where the Minister, after receiving and considering a report of a hearing officer appointed to conduct a public hearing with respect to an objection served on the Minister by any person under section 9, has confirmed an intention to expropriate an interest in land, or a more limited interest therein, in the manner provided in section 14, the Minister shall, at the written request of the person who served the objection, furnish that person with a copy of the report of the hearing officer and, where effect was not given to the objection, a statement of the reasons that the Minister had for not giving effect thereto.
94. Subsection 14(1) of the Act is replaced by the following:
Notice of confirmation of intention
14. (1) The Minister may confirm an intention to expropriate an interest in land or immovable real right to which a notice of intention relates, or a more limited interest or right in the land, by requesting the Attorney General of Canada to register a notice of confirmation, signed by the Minister, setting out,
(a) if the interest or right expropriated is the same as the interest or right to which the notice of intention relates, a statement that the intention to expropriate that interest or right is confirmed; or
(b) if the interest or right expropriated is a more limited interest or right than the interest or right to which the notice of intention relates, a statement that the intention to expropriate the interest or right to which the notice of intention relates is confirmed except as expressly specified in the statement.
Explanatory Notes
Clause 94: Existing text of subsection 14(1):
14. (1) The Minister may confirm an intention to expropriate an interest in land to which a notice of intention relates, or a more limited interest therein, by requesting the Attorney General of Canada to register a notice of confirmation, signed by the Minister, setting out,
(a) if the interest expropriated is the same as the interest to which the notice of intention relates, a statement that the intention to expropriate that interest is confirmed; or
(b) if the interest expropriated is a more limited interest than the interest to which the notice of intention relates, a statement that the intention to expropriate the interest to which the notice of intention relates is confirmed except as expressly specified in the statement.
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