In Selenium Creative Ltd. v. Edmonton (City), 2025 ABCA 120, released on April 4, a bench of Chief Justice Ritu Khullar, Justice Kevin Feehan and Justice Jane Fagnan held that a chambers judge erred in determining that the focus of such an application was only the time required to vacate the premises.
“Difficulties experienced by the owner not just in vacating within the 90-day period, but also in relocating, are among the relevant factors to be considered by the court,” the bench wrote.
The respondent, the City of Edmonton, expropriated the leasehold interest of the appellant, Selenium Creative Ltd., in a property to accommodate utility relocation work required to facilitate a freeway conversion project.
The City provided the appellant notice that it was required to provide vacant possession of the concerned property within 90 days.
Selenium applied under s. 64(3) of the Act for an extension of time. It submitted that it could not relocate to suitable new premises by the date of possession in part due to the increased lead times that contractors and suppliers required to make new premises suitable for its operations.
The city argued that Selenium had ample notice and opportunity to prepare for relocation, and that, in any event, the appellant’s complaints would be addressed in its claim for compensation.
The chambers judge held that the remedial aspects of the Expropriation Act are monetary and not possessory.
He concluded that the focus on s. 64(3) applications is the time required to vacate, not the time required to relocate.
Selenium applied for permission to appeal, even though the issue regarding the extension was moot as it had vacated the premises. The court granted Selenium permission to appeal regarding the interpretation of s. 64(3).
On appeal, Selenium submitted that s. 64(3) should be interpreted as being remedial and that relocation issues are necessarily relevant to an application under the provision.
The city argued that an expropriating authority’s ability to plan and execute complex infrastructure projects in the public interest would be significantly compromised if s. 64(3) requires the court to favour the individual and fact-dependent relocation needs of each expropriated party.
The bench noted that the city’s argument misconstrued the issue.
“There is no dispute that the court must weigh competing interests and factors in exercising discretion under s. 64(3). The question is whether s. 64(3) should be interpreted to preclude consideration of problems relating to relocation,” the court observed.
The bench noted s. 64(2), which requires an expropriating authority to provide a minimum of 90-days notice to an owner, is a remedial provision.
The court found that s. 64(3) was also remedial as it offers the opportunity for an owner to seek an extension of the date of possession beyond the 90-day minimum.
“An application under s. 64(3) allows the court to further mitigate, where justified, the impact of the expropriation on the owner. If compensation is always a full answer to relocation difficulties, s. 64(3) would serve little purpose,” the bench observed.
The court held that an application under s. 64(3) requires the decision-maker to consider all the various relevant facts, factors and interests at play in a particular case, keeping in mind the remedial purpose of the Expropriation Act.
The bench concluded that the chambers judge erred in holding that only the monetary aspects of the Expropriation Act are remedial.
Selenium also challenged the chambers judge’s decision to award costs to the city.
The court observed that under ss. 35 and 39 of the Act, an owner is entitled to the reasonable cost of an independent appraisal and to reasonable legal costs to determine the compensation payable by the expropriating authority.
The chambers judge had found that these provisions did not apply to s. 64(3) applications because they relate to legal costs incurred by the owner for the purpose of determining compensation.
The bench cited Johnson v. Alberta (Minister of Public Works, Supply and Services), 2005 ABCA 10, in which the Alberta Court of Appeal awarded costs of a trial to determine the scope of title taken in an expropriation because it was necessary to finalize the issue before compensation could be determined.
“Solicitor-client costs are available in the context of expropriation proceedings on the rationale that individuals whose land has been taken should receive full compensation for their expenses,” the bench wrote.
The court noted that while s. 39 of the Act provides that costs may be denied or reduced in special circumstances, the chambers judge had not stated anything in his reasons that would suggest there were any such circumstances in the case at bar.
The bench concluded that if the chambers judge had taken the proper approach to costs, he would have granted solicitor-client costs to Selenium.
The court granted the appeal and held that Selenium was entitled to solicitor-client costs on its application before the Court of King’s Bench and on its appeal.
Counsel for the parties were not immediately available for comment.
Counsel for the appellant was Greg Weber of Reynolds Mirth Richards & Farmer LLP.
Counsel for the respondent was Kyla Schauerte of the City of Edmonton.
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