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.
Marginal note:Market value defined
(2) Subject to this section, the value of an expropriated interest is the market value thereof, that is to say, the amount that would have been paid for the interest 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:Where owner required to give up occupation
(3) Where the owner of an expropriated interest 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 him to give up occupation of the land, the value of the expropriated interest is the greater of
(a) the market value thereof determined as set out in subsection (2), and
(b) the aggregate of
(i) the market value thereof determined on the basis that the use to which the expropriated interest 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 disturbance, including moving to other premises, but if those costs, expenses and losses cannot practically be estimated or determined, there may be allowed in lieu thereof a percentage, not exceeding fifteen, of the market value determined as set out in subparagraph (i),
plus the value to the owner of any element of special economic advantage to him arising out of or incidental to his occupation of the land, to the extent that no other provision is made by this paragraph for the inclusion thereof in determining the value of the expropriated interest.
Marginal note:Where Crown has taken physical possession of land
(4) In any case where 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 shorter than the ninety days mentioned in paragraph 19(1)(c), there shall be added to the value of the expropriated interest otherwise determined under this section an additional amount equal to ten per cent thereof.
Marginal note:Where specially designed building erected on land
(5) Notwithstanding subsection (3), where any parcel of land to which a notice of confirmation relates had any building or other structure erected thereon 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 has been rendered impracticable as a result of the expropriation, the value of the expropriated interest is, if the expropriated interest 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 therefor for that purpose, the greater of
(a) the market value of the expropriated interest determined as set out in subsection (2), and
(b) the aggregate of
(i) the cost of any reasonably alternative interest in land 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 be allowed in lieu thereof a percentage, not exceeding fifteen, of the cost determined under subparagraph (i),
minus the amount by which the owner has improved, or may reasonably be expected to improve, his position through re-establishment on other premises.
Marginal note:Where Crown has taken physical possession of land
(6) In any case where 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 shorter than the ninety days mentioned in paragraph 19(1)(c), there shall be added to the value of the expropriated interest otherwise determined under this section an additional amount equal to ten per cent thereof.
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 was allowed to continue in occupation of the land after the Crown became entitled to take physical possession or make use thereof, and to any assistance given by the Minister to enable the former owner to seek and obtain alternative premises.
Marginal note:Land used for residence
(8) Where an expropriated interest was, immediately before the registration of a notice of confirmation, being used by the owner thereof for the purposes of his residence and the value of the interest otherwise determined under this section is less than the minimum amount sufficient to enable the owner, at the earlier of
(a) the time of payment to him of any compensation in respect of the interest, otherwise than pursuant to any offer made to him 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 interest expropriated,
to relocate his residence in or on premises reasonably equivalent to the premises expropriated, there shall be added to the value of the interest otherwise determined under this section the amount by which that minimum amount exceeds that value.
Marginal note:Moving and relocation expenses of owner of leasehold interest
(9) Where an expropriated interest was, immediately before the registration of a notice of confirmation, owned by the owner thereof as a leasehold interest, 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 referred to therein otherwise determined under this section, as the case may be, such part of that amount as is appropriate having regard to
(a) the length of the term of the leasehold interest 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 owner of the leasehold interest had; and
(c) any investment in the land by the owner of the leasehold interest and the nature of any business carried on by him thereon.
Marginal note:Land subject to security interest
(10) Where an expropriated interest was, immediately before the registration of a notice of confirmation, subject to an interest in land that was held by the owner thereof as security only, in this subsection called a “security interest”,
(a) the value of the expropriated interest is the aggregate of
(i) the value thereof otherwise determined under this section as though it had not been subject to any security interest, and
(ii) the amount of any loss or anticipated loss to the owner of the expropriated interest 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 in excess of 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,
less the value of each security interest to which the expropriated interest was subject, determined as provided in paragraph (b) but as though no amount were included therein by virtue of subparagraph (ii) of that paragraph;
(b) the value of the security interest is the aggregate of
(i) the principal amount outstanding under the terms of the security, and any interest due or accrued thereunder, 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 thereunder immediately before the registration of the notice of confirmation,
and where the expropriated interest was subject to more than one security interest, the value of each security interest shall be determined in the order of its priority but in no case shall the value of any security interest to which an expropriated interest was subject exceed the value of the expropriated interest otherwise determined under this section as though it had not been subject to any security interest, less the value of each other security interest the value of which is required by this subsection to be determined in priority thereto; and
(c) where part only of the interest that was subject to a security interest was expropriated, the value of the security interest is that proportion of the value thereof otherwise determined under this subsection as though the whole of the interest subject to the security interest had been expropriated, that
(i) the value of the part only of the interest, otherwise determined under this subsection as though it had not been subject to any security interest,
is of
(ii) the value of the whole of the interest otherwise determined under this subsection as though it had not been subject to any security interest,
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, otherwise than pursuant to any offer made to the owner thereof under section 16.
Marginal note:Factors not to be taken into account
(11) In determining the value of an expropriated interest, no account shall 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 sale, lease or other disposition of the interest or any part thereof, 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 resulting from the anticipation of expropriation by the Crown or from any knowledge or expectation, prior to the expropriation, of the public work or other public purpose for which the interest was expropriated; or
(d) any increase in the value of the interest resulting from its having been put to a use that was contrary to law.
- R.S., c. 16(1st Supp.), s. 24
- Date modified: