Michelle Awad

The appellant landowner sued a municipality alleging constructive taking of approximately 965 acres of vacant land, claiming the municipality's refusal to initiate a secondary planning process — combined with alleged encouragement of public use of the lands as a park — amounted to a de facto expropriation without compensation.

The majority (5-4) held that the CPR test for constructive taking requires only that a public authority acquire a 'beneficial interest' understood broadly as an 'advantage' (not necessarily a proprietary interest), and that the municipality's intention may be a relevant material fact.

The majority restored the motion judge's order allowing the constructive taking claim to proceed to trial, finding genuine issues of material fact.

The four dissenting justices would have dismissed the appeal, holding that CPR requires acquisition of a proprietary interest and that intention is irrelevant to the de facto taking analysis.

The moving party sought to strike an affidavit filed in support of an application for leave to appeal, arguing the affidavit was irrelevant and inadmissible under Rule 89 of the Rules of the Supreme Court of Canada.

The Court held the opinion evidence lacked proper foundation, consisted largely of sworn argument on ultimate issues, and improperly attacked the correctness of the appellate decision below.

The Court reaffirmed that affidavit evidence will rarely be useful on leave applications unless it assists in establishing public importance through material not apparent from the record.

The motion was granted, the affidavit and related memorandum portions were struck without leave to amend, and costs were awarded to the moving party in any event of the cause.