The Coherence of Constructive Takings: A Response to Peter Wills

Abstract

In a recent article, Peter Wills advances provocative claims regarding the Supreme Court of Canada’s elucidation of constructive takings doctrine in Annapolis Group Inc. v. Halifax Regional Municipality (Annapolis). This article responds to four key claims in Wills’ critique. First, it argues that the Annapolis judgment adheres to, and indeed exemplifies, the traditional method of common law adjudication. Second, it contends that a claim for compensation for a constructive taking is properly classified as a private law action, specifically, a tort. Third, it rebuts Wills’ allegation that the action is untenable and incoherent when evaluated as a species of tort. Fourth, it concludes that Wills fails to substantiate his criticisms of constructive takings doctrine and that legislative intervention to abolish the action would not make the common law more coherent. In truth, the critique is founded upon a mechanical, Benthamite model of the common law, whereas the Annapolis judgment is faithful to the classical approach to common law adjudication and its robust, juridical conception of coherence.