Tuesday, 19 August 2014


Vancouver has been able to avoid buying the CPR right of way because 8 years ago the City got lawyered up and won its expropriation case. [ Canadian Pacific Railway Co. v. Vancouver (City), 2006 SCC 5] The Supreme Court of Canada held that the Official Development Plan (ODP) merely freezes the use of the land with a view to preserving it for future development by precluding present uses that might interfere with that development. The City is not obliged to compensate CPR for the land even though the CPR said  in 2006 that it was no longer useful as a transit corridor.

Since then the old corridor has been used by trespassing gardeners. The City treated  it with benign neglect. They didn't have to buy it and the CPR could run trains up and down for fun if they liked.

When development obsessed, VISION started their mass rezonings the CPR hit upon a strategy borrowed from Mel Brooks in his Hitchcock parody, High Anxiety. Brooks’ character, a psychiatrist and Madeleine Kahn are in the airport toting guns. They need to get through customs. Brooks tells Kahn, counter-intuitively, that instead of avoiding attention, she should be as obnoxious as possible. They both become quite disgusting. The security is so turned off that they push them, with their cargo of weapons, onto the plane.

The CPR after carefully studying High Anxiety announced that they were going to run trains from here to there on their tracks. Pursuant to Mel Brooks’ strategy, they trampled the farmers cumquats and bulldozed their fences. Their next act would likely involve blowing horns at midnight or a food fight out of Animal House.

Lets suppose that Council's very own psychiatrist, Kerry Jang, possibly a student of Brooks, is planning the next move. I have never met a psychiatrist I couldn't help, and this is what I would suggest.

"Professor Jang, there is an election coming up and you incumbents have a dilemma. If  you do nothing other than say things like, “That’s no way to run a railroad!” you will seem weak and ineffectual in the face of the CPR’s brutish behavior."

"If you agree to a price or even compromise with the CPR, it will seem like you are rewarding pigs with breakfast."

Then I would tell him that the Expropriation Act offers a solution that allows both sides to win and the public to lose. Section 3. (1)  would allow the CPR to agree to transfer land to the City without going through the full expropriation process. If they cannot agree on the price the City can pay a tiny fraction of its fair value to the CPR. That would all happen before the election. The VISIONISTAs would trumpet their business acumen: "We paid $500 dollars and they accepted. Ha. "

The farmers, who have been described by Pete McMartin as Marxists, would thank the council commissars

The CPR’s wax mustachioed executives would slink out of town.

Scene 2 would occur long after the election. A hearing would take place before a judge as required by the Expropriation Act and based on appraisal evidence would set the price for the sale as of the date the owner agreed to transfer  the land to the city.

The Expropriation Act states that the court must award as compensation the market value of the owner’s estate or interest in the expropriated land *** In determining the market value of land, account must not be taken of (g) any increase or decrease in value of the land that results from the enactment or amendment of a zoning bylaw, official community plan or analogous enactment made with a view to the development in respect of which the expropriation is made.

There are also special provisions for unique properties like railroad right of ways and abattoirs.

After the purchase and the election, the City could repeal or amend the OCP anyway it liked. The change would not affect the cost of the purchase. What is likely to happen, though, is that the City would have to pay much more than what it has been calling “fair market value.” The CPR would get fair market value.

You can bet that at midnight when the Supreme Court delivers the next CPR decision, the VISIONISTAS will not let the railroad turn back into a pumpkin patch. A strip casino will be more like it.

If they manage to get re-elected in November by a heavy turnout of kale growers and residents on Point Grey Road, the public will promise not to vote for them when the next election rolls around in four years.

Note: Since writing the above I have been asked whether the City has the power to expropriate. This is a complicated issue but the CPR seemed to think so. It argued in CPR v Vancouver SCC 2006

35     CPR also argues that the British Columbia Expropriation Act, R.S.B.C. 1996, c. 125, requires the City to compensate CPR (Appendix B). Section 1 of the Act defines "expropria[tion]" as "the taking of land by an expropriating authority under an enactment without the consent of [page241] the owner", and goes on to define "expropriating authority" as "a person ... empowered under an enactment to expropriate land". Section 2(1) of the Act provides that "[i]f an expropriating authority proposes to expropriate land, th[e] Act applies to the expropriation, and, if there is an inconsistency between any of the provisions of th[e] Act and any other enactment respecting the expropriation, the provisions of [theExpropriation Act] apply." The Expropriation Act requires compensation for land expropriated, while the Vancouver Charter states the City is not obliged to compensate for adverse effects to land caused by an ODP. CPR argues that this constitutes an inconsistency and that, under s. 2 of the Expropriation Act, the requirement of compensation in that Act must prevail.