A “taking” is a forcible acquisition by the state of privately-owned property for public purposes. A taking can either be de jure (i.e., a formal taking, by, for example, by taking title of the land) or de facto (i.e., effective appropriation by a public authority exercising its regulatory powers). Owners whose land has been subject to a taking are entitled to compensation. The Supreme Court of Canada (SCC) set out the test for a de facto taking in Canadian Pacific Railway v. Vancouver (City), 2006 SCC 5 (CPR). A de facto taking occurs where there has been: (1) acquisition of a beneficial interest in the property or flowing from it, and (2) removal of all reasonable uses of the property (CPR at para 30).
In Annapolis Group Inc. v. Halifax Regional Municipality, 2022 SCC 36 (Annapolis v Halifax), a 5-4 majority of the Supreme Court clarified that a de facto taking — or, as the majority preferred to call it, a “constructive taking” — of private property by the state does not require actual acquisition of a proprietary interest. Instead, the inquiry focuses on whether the state has, in effect, obtained an “advantage” from the property.
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