Expropriating authorities should be on notice: the three-month notice of possession requirement remains open to challenge

In Ontario, an expropriating authority must serve all registered owners with notice of when it will be taking possession of expropriated land rights — and the date of possession must be at least three months after the date the notice is served.[1] Property owners or expropriating authorities can apply to a judge for an order varying the date of possession from what is on the notice.[2] For example, expropriating authorities may seek an order allowing them to take possession in less than the three months' minimum notice, if it is appropriate in the circumstances. Alternatively, property owners can seek an order that extends the period to vacate before an expropriating authority takes possession. It is not uncommon for the owner and authority to negotiate their own agreed upon change to the possession date. 

A recent case in Alberta considered similar provisions found in Alberta’s Expropriations Act, to that of the Ontario Expropriations Act. Both statutes require that the notice period be at least ninety days prior to possession, and provide judicial discretion to vary the notice period for possession.[3] The decision has recently been cited in Ontario jurisprudence regarding an application to reduce a possession period and it provides an important caution for Ontario’s expropriating authorities: the three month notice period for possession is generally treated as a minimum, and if appropriate, will be extended by the Court to grant owners sufficient time to relocate.

The Case from Alberta

In Selenium Creative Ltd v Edmonton,[4] an urgent application was brought by Selenium Creative Ltd. (“Selenium”) to extend the statutory possession date. Selenium operates an industrial manufacturing business and their commercial leasehold interest was fully expropriated by the City of Edmonton for a major infrastructure project. Selenium was given ninety days notice of possession to vacate the property, but sought additional time based on a plan to relocate its specialized operations. Selenium applied to the court for more time, given its specialized operations and corresponding difficulties in relocating. Relocation became difficult primarily because of the time required to make new premises suitable for its operations. Specifically, Selenium asserted that it would have normally required two to three years to plan and execute a relocation because of increased lead times that contractors and suppliers required to make new premises suitable for Selenium’s unique operations.

In an oral decision, the Court of King’s Bench of Alberta declined to grant an extension, focusing on the fact that the 90-day period was for vacating, not relocating, and that compensation for losses related to the expropriation was to be addressed in a separate proceeding, not falling within an application to extend the notice period. 

The Alberta Court of Appeal heard the appeal, though relief was limited to an award of costs for Selenium’s application to extend the possession period, as Selenium had vacated the property. However, the Court of Appeal, in addition to addressing the issue of costs of the application on possession, decided it would exercise its discretion to determine whether difficulty in relocation is relevant to possession even though in this case the tenant made other arrangements by the time of the appeal hearing. The Court of Appeal determined that it would answer the question of whether the time required to relocate to new premises is a relevant factor on an application to adjust the date of possession. The Court of Appeal noted:

…the decision being appealed will likely have collateral consequences (very possibly long-standing) in affecting how owners will behave when making very significant decisions in the expropriation context, beyond the decision as to whether to seek an extension of the possession date.[5]

Ultimately, the Court of Appeal disagreed with the reasoning in the lower decision and ruled that relocation difficulties are relevant to a decision to extend the notice period for possession. If the decision to vary the notice period was solely focused on the time required to vacate, owners requiring more than ninety days to relocate would need to start the relocation process before receiving notice of possession and knowing the timing of the expropriation. The Court directed that the difficulties experienced by an owner, not just in vacating, but also in relocating, are among factors to be considered by the Court in deciding whether or not to grant an extension. The Court of Appeal added that judges should exercise their discretion in accordance with the remedial purposes of expropriation legislation, and that financial redress in expropriations are not the only remedial aspects of the legislation. That is, the remedial nature of the expropriation legislation extends to substantive remedies and not just damages. If compensation was always a full answer to relocation difficulties, there would be no purpose to the provision granting judges the discretion to vary a notice period for possession. 

The Supreme Court of Canada’s decision in Toronto Area Transit Operating Authority v Dell Holdings Ltd, [1997] 1 SCR 32 (“Dell Holdings”), significantly influenced both the decision of the lower Court and the Court of Appeal, though they drew different conclusions about the remedial scope of the Expropriation Act.

The Chambers Justice relied on Dell Holdings to outline the Act’s purpose and interpretative principles. He emphasized the aim of full compensation, citing the Supreme Court’s statement that the Act seeks to “fully compensate a landowner whose property has been taken.” He also referenced Cory J.’s direction that the Act should be read broadly and purposively, with expropriating powers strictly construed in favour of affected owners and the statute given a “broad and liberal interpretation.”

However, the Chambers Justice limited these principles to financial compensation, finding that the broad, remedial approach described in Dell Holdings applied mainly to monetary aspects of expropriation. Consequently, he adopted a narrow interpretation of costs, holding that the Act did not automatically entitle a landowner to indemnification for matters unrelated to compensation (such as an unsuccessful application to extend the time to vacate property under section 64(3) of Alberta’s expropriation statute).

The Court of Appeal reached the opposite conclusion when drawing from Dell Holdings. It reiterated that expropriation powers must be strictly construed in favour of the landowner, quoting Dell Holdings at paragraph 44, and reaffirmed that the Expropriation Act is a remedial statute that must be given a broad and liberal interpretation consistent with its purpose.

Unlike the Chambers Justice, the Court of Appeal held that the Act’s remedial nature extends beyond monetary compensation. Relying on Dell Holdings, it found that the Chambers Justice erred by restricting the Act’s remedial focus to financial issues and by failing to consider relocation or other possessory concerns under section 64(3).

The Court of Appeal concluded that section 64(3) itself is remedial, intended to mitigate the impact of expropriation on landowners. Accordingly, the principle of indemnification for costs - rooted in Dell Holdings - also applies to such proceedings.

Both Courts accepted that Dell Holdings mandates a broad and purposive interpretation of expropriation law aimed at full compensation. While the Chambers Justice read “full compensation” narrowly, limiting it to financial loss, the Court of Appeal interpreted it broadly, extending it to possessory protections (such as relocation considerations) and related costs.

Selenium has implications for Ontario expropriation possession notice periods

Alberta precedent is not binding in Ontario; however, the courts have commented on the similarities between Ontario and Alberta respective expropriation legislation. Notably, the Alberta and Ontario legislation show a divergence in possession provisions where the latter makes direct reference to a judge’s consideration of all the circumstances when making a decision on the adjustment of a possession date: 

Alberta

64(3) Any time after service of the notice, either party may apply to the court on 3 days’ notice for an adjustment of the date for possession specified in the notice referred to in subsection (1) and the court may order an adjustment in the date.

Ontario

39(3) A registered owner or an expropriating authority may, upon such notice as the judge may direct, apply to a judge for an adjustment of the date for possession specified in the notice of possession, and the judge, if he or she considers that under all the circumstances the application should be granted, may order that the date for possession shall be on such earlier or later date as the judge may specify in the order. (Emphasis added)

The Selenium decision, which has already been cited by the Ontario Superior Court in August 2025,[6]  is likely to be persuasive in Ontario where cases share similar circumstances and facts — and to that end, expropriating authorities should be on notice that applications to extend possession periods may be bolstered by the broad and remedial interpretation by Alberta’s Court of Appeal. 

A variety of factors may be taken into consideration with this expanded application of the principles of Dell Holdings for varying a possession period, which might likely extend to include aspects related to special difficulties in relocation: 

• the nature of the business and unique functions carried on at the location;
• the availability of unique or specialized replacement sites;
• special difficulties relocating/acquiring equipment that has been affixed to the building;
• the time to construct replacement facility;
• the availability of and means to mitigate business losses accruing from possession prior to a replacement site being available and/or ready for occupancy; and
• whether delays in relocation will be required to preserve employment and businesses. 

Such factors will likely be balanced against countervailing elements raised by an expropriating authority such as prejudice to the authority in carrying out its public project, including factors such as increased costs from what is projected or budgeted, the accuracy of such budgets or projections, and any inconvenience/delay to project timelines. In that regard, the practical application is that judges will be tasked with applying what is essentially a balance of convenience test that weighs potential harm to each party. 

When planning projects involve expropriation, Ontario’s expropriating authorities should turn their attention, early in the process, including at the environment assessment stage, to whether there are potentially complicating factors related to an owner’s ability to relocate within the statutory ninety-day period. Doing so, and making early efforts to understand and assist with mitigating those difficulties, should help alleviate future tension over possession dates and unnecessary, contested Court Applications.

[1]Expropriations Act, RSO 1990, c E26, s 39(2).

[2]Ibid, s 39(3).

[3]Expropriation Act, RSA 2000, c E13, ss 64(2)(b), 64(3).

[4]Selenium Creative Ltd v Edmonton (City), 2025 ABCA 120 [Selenium].

[5]Ibid, at para 13.

[6]Hydro One Networks Inc. v. Drew et al., 2025 ONSC 4869.