A Railway, a City, and the Public Regulation of Private Property: CPR v City of Vancouver

AuthorDouglas C. Harris
A Railway, a City, and the Public
Regulation of Private Property:
TA  C  te nkilometres northsouth throughthewest
sideoftheCity ofVancouverOwnedin feesimplebythe CanadianPacic
RailwayCPRthis ft yto sixtysix footwidestrip ofla ndis depending
ononesperspect ivefortyveacres ofenormously valuablereal estateor
apreciousribbonofautomobilefreeurban landFigureTheCPRcarved
most of the corridor out of the provincial land grant that induced the com
pany to move the terminus of its transcontinenta l railway from a planned
location at the eastern end of Burrard Inlet to the western e nd — to what
the commercial centre of Vancouver to the northern arm of the Fraser River
ceasedpasse ngerservice inbutconti nuedtomove freightuntil 
One year before the last train rolled along the l ine, and as the CPR explored
ment Plan (Appendix A). Intended to preserve the linear strip f rom develop
ment, the plan limited use of the corridor to a “public thoroughfare” for rail,
transit, or cycling, or to some mix of park and paths t hat the City labelled a
“greenway.” Automobiles were expressly excluded and other development
would not be considered. The company turned to the courts, argui ng that
the City had taken its property for which compensat ion was due, and CPRv
CityofVancouver was born.
This chapter considers the intert wined histories of a railway company
and a city that gave rise to CPRv Cityof Vancouver. It begins with the land
grants that gave the CPR such a strong corporate presence in Vancouver.
The company was one of the city’s principal employers and by far its lar
gestlandholderanditus editsposition toestablishbasic paernsofurban
land use; industrial, commercial, a nd residential districts all followed the
CPRsleadAsthecitygrewa ndtheCPRsolditslandthecompanysinu
ence waned, but it retained the capacity to shape the urban form when, in
real estate development. This chapter describes these in itiatives, particularly
those involving rail lands that were to be converted to other, usually residen
tial, uses. It then tur ns to the Arbutus Corridor, to the CPR’s development
planningandtot hecitysocialdevelopmentplan
Thena ltwo sections ofth ischapter analyse theprogression ofCPR v
CityofVancouvertotheSupremeCourtofCanadaSCCandthenreect on
what the decision means for the city and what it reveals about the role of
the courts in Can ada as arbiters of the boundary between public regulat ion
and privateproper tyIn its rst engagement in nearly twenty years w ith
the doctrine k nown in the United States as regulatory tak ing and in Can
ada, variously, as defacto expropriation, constructive taki ng, or defacto tak
ing, the SCC, in a brief twelve paragraphs, ruled public regulation of private
property would amount to a taking of that propert y that warranted com
pensationonlyifthestateeectivelyacquiredtheinterestand prevented all
reasonable uses of that interest by its owner.TheArbutusCorridorOcial
Development Plan did not meet either criteria and therefore the city need
not choose between compensating t he company for its loss of a property
interest or rescinding the development plan. As a result, the plan and t he
railway remain in place; the property remain s unused and undeveloped by
its owner. Beyond this particular outcome, CPRvCityofVancouverappears to
conr mthereluc tanceof Canadia ncour tstopatrol thereg ulation ofprivate
property. Indeed, the courts in Canada have seldom intervened to require
public compensation for regulations that limit the u ses of private property,
and this chapter concludes by locating thi s judicial reticence within a legal
framework that does not include constitutional guarantees of rights to pri
va te p rop ert y.
CPR and the Making of Vancouver
T CV       arrivedwiththeCanadianPacicRailwaybutmight
well have been otherwise. The town site of Port Moody at the eastern end
ofBurrardInlet onthePacicOcea nwastohavebeen thetranscont inental
line’s western terminus. The Federal government had announced as much
the line. In anticipation of the railway’s completion and the economic activ
ity that a terminus would bring, i nvestors and speculators acquired land in
builder itself. As a result, the CPR looked elsewhere for a location where it
mightbeneta sa landholderfromt heeconomic activityt hatthe railway
wouldgenerateAnothersmall selement which hademerged around the
Hastings lumber mill a nd the adjacent Granville town site lay nearly twenty
kilometres weston Burrard Inlet Witha population of approximately
peopleintheearlysGranvillesatju steastofaacreprovinc ialgov
totimber leasesbutnot otherwisea lienatedandi ntheCPR received
the governmentres ervea nda larger parcel Distric tLot  in exchange

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