Industrial manufacturing business lost leasehold interest for city's freeway conversion project
In proceedings following the expropriation of property, the Alberta Court of Appeal found the factors relating to relocation relevant and the law of costs governing expropriation contexts applicable to an application under s. 64(3) of Alberta’s Expropriation Act, 2000.
Selenium Creative Ltd – the appellant in Selenium Creative Ltd v Edmonton (City), 2025 ABCA 120 – was an industrial manufacturing business. The City of Edmonton, the respondent in this case, wanted to expropriate Selenium’s leasehold interest in a property for its utility relocation work relating to the Yellowhead Freeway conversion project.
The city ordered Selenium to vacate the property within 90 days from service of its notice under s. 64(2) of the Expropriation Act. Selenium applied for an extension of time under s. 64(3), which allowed the expropriating authority or the property’s possessor to request an adjustment of the time to surrender possession required by the law.
The city agreed to an extension shorter than Selenium wanted. Selenium thus took the case to the Alberta Court of King’s Bench.
A chambers judge said he had a binary choice between a possession date within six weeks, as the city proposed, and a possession date within almost a year, as Selenium requested. Ultimately, the judge refused to grant a further extension and ordered Selenium to vacate the premises in six weeks, which was later extended by two weeks by agreement.
Selenium argued that the judge should interpret s. 64(3) as remedial, which would make the issue of relocation necessarily relevant. However, the judge found that only the Expropriation Act’s financial aspects – not its possessory aspects – were remedial and subject to a broad, purposive, and liberal interpretation.
The judge said a separate proceeding would deal with the financial impacts alleged by Selenium, so he chose not to address this issue. The judge added that s. 64 did not concern compensation or other financial considerations, and that a s. 64(3) application should focus on the time needed to vacate, not the time required to relocate. The judge awarded the city costs under column one.
Selenium appealed. It alleged that the judge wrongly held that the time it would take to vacate was relevant, while any difficulty in relocating was irrelevant in considering whether to grant an extension under s. 64(3).
Since Selenium has vacated the premises, it agreed the issue of granting an extension was moot, but it challenged the interpretation of s. 64(3). The Court of Appeal of Alberta allowed its appeal and found it entitled to solicitor-client costs on its application.
First, the appeal court ruled that the time required to relocate to new premises was a relevant consideration for the current possessor’s s. 64(3) application to adjust the date the expropriator would possess the premises.
The appeal court held that the chambers judge incorrectly refused to exercise his discretion to adjust the possession date and made errors in his findings that only the Expropriation Act’s financial aspects were remedial, that s. 64(3) should focus only on the time needed to vacate, and that he had a binary choice between the dates proposed by the parties.
The appeal court then determined that the rules for costs in expropriations, not the usual rules for costs in litigation, applied to the s. 64(3) application. The appeal court found that the judge failed to address whether the requested costs were reasonable or whether special circumstances justified reducing or denying costs.
The appeal court concluded that the chambers judge would have granted Selenium solicitor-client costs if he had taken the proper approach to costs. The appeal court noted that the chambers judge did not suggest Selenium improperly applied for relief under s. 64(3) or deserved no costs due to special circumstances in this case.
