This case was heard in the Nova Scotia Court of Appeal.
After the Province of Nova Scotia designated a portion of land in Lunenburg County as a “beach” under the provincial Beaches Act, various property owners applied for a Court declaration stating that their land had been constructively expropriated by the Province and that they were therefore entitled to compensation.
With the exception of one of the applicants, the Court held that the applicants had lost “virtually all economic value in the designated lands and thus have lost an interest in their property,” and it also held that the Province had acquired an interest in the land by preserving the lands “for the use and enjoyment of the public in general.” The Court therefore held that the applicants (with the one exception) had met both parts of the test that were necessary for a finding of constructive expropriation, and it declared that they were entitled to compensation.
When the Province appealed to the Nova Scotia Court of Appeal, the Court held that the Trial Judge had erred in his conclusions. The Court held that the first part of the test for constructive expropriation was not whether landowners had lost economic interests in the lands in question, but whether the Province had removed “all reasonable private uses” to which the land could be put. The Court also held that the Province had not acquired an interest in the land that was sufficient to meet the second part of the test, as the Province had not acquired title to the land or reclaimed rights to any of the resources that might be found within it. The Court therefore reversed the decision of the Trial Judge and held that as there had been no constructive expropriation, the affected property owners were not entitled to compensation.
To read about this case in the Supreme Court of Nova Scotia, go to Mariner Real Estate Ltd. v. Nova Scotia (Attorney General), 1998 CanLII 1757 (NS SC).