Casual Legal: Vacating vs. relocating
DISCLAIMER: This article is meant to provide information to Alberta Municipalities members only and is not intended to provide legal advice. You should seek the advice of legal counsel to address your specific set of circumstances. Although every effort has been made to provide current and accurate information, changes to the law may cause the information in this article to be outdated. This content is not intended for the general public.
By Sean Ward
Reynolds Mirth Richards Farmer LLP
Alberta Municipalities Casual Legal Service Provider
A recent decision from the Alberta Court of Appeal helps clarify an expropriating authority’s obligations when faced with an application by a party for an extension of time to give up possession of a property.
Under the Expropriation Act, a party served with a notice to give up possession of land can apply to the court for an adjustment of the date of possession. In the case before the court, the municipality served notice to an industrial manufacturing business to expropriate their leasehold interest in a property to accommodate utility relocation work. The business applied to court to get a time extension, arguing that it would be difficult for them to relocate within that required period.
The judge first hearing the matter declined to grant an extension, concluding that the only relevant question was how long it would take the business to vacate the property. The judge concluded that any difficulties the business may have in relocating were irrelevant in deciding whether or not to extent the date of possession. The judge also awarded costs to the municipality of the application, despite the usual rules in an expropriation that the party facing expropriation is entitled to recover its legal costs from the expropriating authority. The judge concluded that an application to adjust the possession date is not subject to those same cost rules, and the municipality should be entitled to an award of costs as the successful party.
Both findings were reversed on appeal. The Court of Appeal emphasized that when faced with an application to extend the time for giving up possession of a property, it is necessary to consider all relevant factors and interests at play in a particular case. That requires the court to consider difficulties experienced by an owner not merely in vacating a property, but also in relocating the business. The court also found that the judge had improperly limited his decision-making to choosing between the two dates proposed by the parties, rather than considering any appropriate date based on the specific circumstances.
The Court of Appeal also overturned the decision to award costs to the municipality, finding that the regular approach of awarding the business its full legal costs should have applied to this application to extend the date of possession.
To access Alberta Municipalities Casual Legal Helpline, Alberta Municipalities members can call toll-free to 1-800-661-7673 or casuallegal [at] abmunis.ca (email) to reach the municipal legal experts at Reynolds Mirth Richards and Farmer LLP. For more information on the Casual Legal Service, please call 310-MUNI (6864) or riskcontrol [at] abmunis.ca (email) to connect with Alberta Municipalities Risk Management staff. Any Regular or Associate member of Alberta Municipalities can access the Casual Legal Service.
