Summary

The Alberta Court of Appeal in Selenium Creative Ltd. v Edmonton (City) clarified that courts may consider relocation challenges when adjusting possession dates under Section 64(3) of the Expropriation Act, RSA 2000, c E-13 (the Act). The Court also affirmed that expropriation cost recovery provisions apply to such applications, reinforcing the Act’s remedial purposes.

Background

Selenium Creative Ltd. (Selenium), a specialized manufacturer, leased premises expropriated by the City of Edmonton (the City) for the Yellowhead Freeway Conversion Project. While s. 64(2) of the Act mandates at least 90 days’ notice to vacate, Selenium sought an extension under s. 64(3) citing extensive logistical challenges in relocating its business.

The chambers judge denied Selenium’s requested extension, focusing narrowly on the time required to vacate, not to relocate. He also held that the Act’s remedial provisions applied only to financial compensation, not possession, and awarded costs to the City under general litigation principles.

Issues on appeal

  1. Whether relocation difficulties are relevant under s. 64(3); and
  2. Whether the special cost provisions for expropriation apply to s. 64(3) applications.
  1. Relocation under s. 64(3)

The chambers judge interpreted s. 64(3) restrictively, relying on tenancy-at-will case law to hold that relocation difficulties were irrelevant to possession timelines. He reasoned that only the Act’s monetary aspects warranted a broad, purposive interpretation.

The Court of Appeal rejected this approach. It emphasized that s. 64(3), like s. 64(2), must be read considering the Act’s remedial purpose. Applying standard principles of statutory interpretation, the Court found that excluding relocation concerns would undermine the Act’s objective: to mitigate the disruptive impact of expropriation.

The Court drew on both jurisprudence and legislative history, including Ontario and Alberta law reform reports, which recognized that business relocation burdens may impact the ability to relocate to adequate alternative accommodation and cause interference to its business and thus require procedural safeguards. The Court cautioned that requiring immediate relocation upon service of possession notice—without regard to practical feasibility—would force owners to act prematurely and assume financial risks before title vests.

The Court concluded that s. 64(3) is remedial and gives courts discretion to consider all relevant factors, including relocation needs. Ignoring such factors fetters discretion and undermines the Act’s remedial intent.

  1. Costs under the Expropriation Act

The chambers judge held that ss. 35 and 39 of the Act did not apply to award costs to the owner, as the s. 64(3) application was not directly tied to compensation. He awarded costs to the City under the Municipal Government Act.

The Court of Appeal disagreed. It emphasized that s. 2(1) of the Act gives it primacy over conflicting laws unless expressly excepted. While ss. 35 and 39 relate to compensation, courts have long interpreted expropriation cost provisions broadly—extending to various procedural matters including possession timelines—based on the principle that owners should not bear costs for exercising their statutory rights.

The Court confirmed that solicitor-client costs are presumptively available in expropriation proceedings unless “special circumstances” justify denial or reduction reciting the Supreme Court of Canada’s decisions in Dell Holdings and Alliance Pipeline. The chambers judge failed to assess whether Selenium’s claimed costs were reasonable or whether such special circumstances existed. The Court found none. It held that the matter was of public importance and Selenium was entitled to solicitor-client costs both at first instance and on appeal.

Takeaways

  • Relocation counts: Courts must consider logistical relocation needs—not just physical vacancy—in applications to adjust possession dates under s. 64(3). The provision is remedial and should not be read restrictively. The  Court of Appeal did not list all the factors but noted the decision maker ought to “consider all the various relevant facts, factors and interests at play in a particular case” including difficulties of the owner in  relocating. A balance of public and private interests is needed.
  • Expropriation cost rules apply broadly: The special cost recovery regime in ss. 35 and 39 applies to s. 64(3) applications, reflecting the Act’s overarching goal to shield expropriated parties from financial disadvantage arising from the public process of expropriation.
  • Statutory interpretation must serve remedial purposes: Judges must exercise discretion under the Act in a manner that supports its protective intent. Artificial constraints based on tenancy principles or narrow readings of “remedial” provisions are misplaced.
  • Broad application of the case: As there are similar statutory provisions in expropriations statutes in most provinces along with relatively few decisions on the possession provisions, this case will be closely examined as persuasive guidance for courts, expropriation tribunals, practitioners and authorities across the country. 

This decision reinforces the remedial nature of expropriation law and the judiciary’s role in ensuring procedural fairness in government takings—especially for small businesses facing real-world relocation challenges.