The Constructive Taking at the Supreme Court of Canada: Once More, without Feeling
![handle is hein.journals/ubclr40 and id is 319 raw text is: THE CONSTRUCTIVE TAKING AT THE SUPREME
COURT OF CANADA: ONCE MORE, WITHOUT
FEELING
RUSSELL BROWNt
I. INTRODUCTION
My aim is to consider the state of takings law in Canada in the
aftermath of the Supreme Court of Canada's recent
pronouncement in Canadian Pacific Railway Co. v. Vancouver
(City),' which represents the Court's first consideration of
takings since its landmark pronouncement in British Columbia
v. Tener2 over 20 years ago. More particularly, I will identify the
implications for Canadian takings law of the Court's treatment in
CPR v. Vancouver of a species of taking to which I shall refer as a
constructive taking but which has also been variously dubbed a
de facto taking or a regulatory taking.3 Such a taking is said
to arise where a public authority does not acquire a proprietary
interest in the land but nonetheless regulates its use such that the
landowner is, to a legally significant measure, deprived of his or
her rights of use and enjoyment.4 Being constructive, it is distinct
from a de jure taking, which denotes the actual forcible
t Assistant Professor, Faculty of Law, University of Alberta
(rbrown@law.ualberta.ca). I am grateful to three peer reviewers, and to Robert
Chambers, Donna Christie, Julia Evans, Douglas Harris, Moe Litman, Gib van
Ert, Moin Yahya, and Bruce Ziff for their comments on an earlier version of this
paper.
1 2006 SCC 5, [2006] 1 S.C.R. 227, 262 D.L.R. (4th) 454 [CPR v.
Vancouver].
2 [1985] 1 S.C.R. 533, 17 D.L.R. (4th) 1 [Tener].
3 1 canvass these various terms and explain my preference for the term
constructive taking at the text associated with infra notes 5 through 9.
4 Bruce Ziff, 'Taking' Liberties: Protections for Private Property in
Canada in Elizabeth Cooke, ed., Modern Studies in Property Law, vol. 3
(Oxford: Hart Publishing, 2005) 341.](ViewImageLocal?handle=hein.journals/ubclr40&div=12&collection=&method=preview&ext=.png&size=3)
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The Constructive Taking at the Supreme Court of Canada: Once More, without Feeling
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