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Construction Work and Expropriations

The authorities have the right to enter onto your private property to conduct an assessment to determine whether the property is suitable and necessary to accommodate its construction or infrastructure projects. If so, you may be facing expropriation proceedings. The authorities are required to provide advanced notice to the landowner, advising that they will be entering onto the lands to conduct an inspection prior to any expropriation proceeding commencing. The assessment may consist of archaeological digging, soil testing, traffic flow testing, etc. The property owner and authorities may enter into an agreement around the investigation to limit the time and scope of the authorities use of the property.

Following the investigation, should the authorities view the property as reasonably necessary to carry out the specific construction works, they will attempt to purchase the property from the property owner in good faith prior to initiating any expropriation proceedings.  To that end, the authorities will provide the property owner with an offer to purchase property – the amount of compensation will be based on the professional conclusions of a real estate appraiser or business valuator. The property owner is then advised to obtain their own professional advice from an expropriation lawyer, business valuator, and/or real estate appraiser to determine whether the authorities offer to purchase is fair and reasonable in the circumstances. The authorities are required to reimburse the property owner for all reasonable legal and professional fees incurred during an expropriation in Ontario.

In the event an agreement to purchase the land cannot be negotiated, the authorities will be required to undergo expropriation proceedings. We will discuss how expropriations in Ontario unfold in a subsequent blog post.

What is the expropriation process in Ontario?

In undertaking various infrastructure projects, authorities are often required to purchase property interests. The local governing council is required to approve property acquisitions by an expropriating authority. At first instance, the expropriating authority must request approval from Council to request an application to expropriate lands and for the offer of compensation made to the owner of the property.

The first step in the expropriation process is to serve property owners with notice of intent to expropriate, following approval from the local governing council. Each owner then has 30 days to request a Hearing of Necessity, or inquiry into whether the taking of the lands was reasonably necessary, or if an alternate means to achieve the project can be undertaken without the expropriation.

Following approval of the expropriation, a certificate of approval and plan of expropriation are registered at the Land Registry Office. At this point, the authorities acquire ownership of the property; however, further steps are required to obtain possession or the right to access the property.

Following registration of the expropriation plan, the notice of expropriation, along with an election will be served on the property owners.  An offer of compensation is the third step in the expropriation process. If you are a property owner or business owner and have been served with an offer of compensation in relation to an expropriation of land, it is best to consult an experienced expropriation lawyer prior to signing any release agreement.

Property Expropriated in Ontario? Protect Your Rights

The abundance of road, infrastructure and transit work ongoing in Ontario has created the need for the governmental authorities to purchase the property from private property owners in order to accommodate such construction. Light Rail Transit (LRT) projects are being built across Toronto, Hamilton, Mississauga and other cities across Ontario. Expropriations are taking place all across York Region in Newmarket, Aurora and the surrounding. Click through on each link for information around the expropriations taking place in your area.

In some cases, the property purchased is only for a temporary time period to accommodate construction work, and other times the purchase is permanent. The amount of land or property taken may be a sliver of land referred to a partial expropriation, or also known as the purchase of an easement (which can be a temporary easement or permanent easement), or the authorities may require the entire property from the owner, which is a full and outright expropriation.

The valuation of the property taken by the authorities is, of course, dependent on each specific circumstance; however, certain principles can guide the valuation analysis. When dealing with a temporary taking of land (i.e., a temporary easement may be the acquisition for a period of time of a pathway in front of a property to accommodate the entry and exit of construction vehicles for the purposes of a public works project), the compensation is based on the loss in value of the property for the period that it is held by the authority. The most common measure of damages is the rental value of the easement area for the period of occupancy.

The temporary easement may also affect the value of the unencumbered land (this is referred to as injurious affection under the Ontario Expropriations Act), which is a form of damages that result when a partial expropriation causes a diminution in value to the remainder of the land. For example, one of our clients had hydro poles relocated to the front of her property, which represented a partial expropriation as the authorities were required to locate a public utility on a private land. Not only was the client compensated for the permanent taking of the portion of the land for which the hydro poles were located – but the property owner was also compensated for the appraised decline in value to the rest of the property as a result of hydro poles being located on her front yard. Of course, the marketability of a property with large poles at the front entrance is reduced as compared to the property without hydro poles.

With the extent of construction and infrastructure activity ongoing in Ontario, it is imperative that private property owners protect their rights in the event of a partial expropriation, temporary easement, permanent easement, full expropriation, or injurious affection caused by the authorities. It is imperative that private property owners consult with legal counsel before accepting an offer of compensation from the authorities and releasing the government from any future claims for losses on account of the expropriation.

We have recovered substantial settlements for commercial and residential property and business owners that have been impacted by government construction works and/or have had land expropriated. Give Goldstein Law Firm a call today for a free consultation in relation to your expropriation.

Is a terminated employee entitled to bonus during the notice period?

Employees that have been terminated from their employment are entitled to all forms of compensation during the reasonable notice period. All forms of compensation include base salary, commissions, incentive compensation, pension contributions, extended health and dental coverage, and any other forms of consideration provided by the employer in the ordinary course of employment.

Some bonus plans and/or employment contracts contain provisions, which attempts to limit bonus entitlements to those workers actively employed with the company. A terminated employee would not be considered “actively employed;” accordingly, under the bonus plan provisions, employers were often not provisioning for bonuses or incentive compensation in severance packages.

In the case of Pacquette v. TeraGO Networks, the Ontario Court of Appeal clarified the law around bonus entitlements during the reasonable notice period. In sum, the language of the bonus plan will be crucial in determining whether the employees’ entitlements to such bonus have ousted during the severance period. The common law presumption is that an employee is entitled to reasonable notice of termination or payment in lieu thereof, and such payment is to include all forms of compensation, including incentive compensation. A clear and unambiguous bonus policy may oust such obligation on the employer.

In order to limit one’s bonus entitlement during the reasonable notice period, an employer should direct the employees’ attention to such clause, or else it may not be held enforceable, especially if the bonus payments are determined to be an integral component of compensation.

Received a Notice of Application for Approval to Expropriate Land?

Upon receipt of the Notice of Application for Approval to Expropriate Land, each owner has 30 days to request an inquiry (Hearing of Necessity) as to whether the taking of the lands by the Region is fair, sound and reasonably necessary. If an owner requests a Hearing of Necessity, then subsequent to the Hearing, an Inquiry Officer will give an opinion as to whether the taking is fair, sound and reasonably necessary.

After the expropriation, the Region is required under Section 25 of the Act to serve an offer of compensation within three months of registration of the expropriation plan. The offer will be based on an appraisal of market value and damages, and possession cannot be secured until the offer of compensation has been served

In accordance with the Act, the Region cannot obtain possession until a minimum of three months after notifying an owner that the expropriation plan has been registered. In addition, it is necessary to make offers of compensation to owners to obtain possession of the expropriated lands.

The authorities will commission independent consultants to provide estimate reports of compensation. The reports include appraisals of market value for the lands expropriated and, if applicable, estimates of compensation for damages. These damages may include loss of improvements (such as landscaping or parking) and injurious affection (the loss of value to the lands retained by the owner).

If you have received an offer of compensation from an expropriating authority, it is in your best interest to consult with an expropriation lawyer to review such offer and advise of your options.

How Much Compensation am I Entitled to if my Property is Expropriated?

If you are an “Owner” of a property (as defined by the Expropriations Act), which includes a property owner, tenant, mortgagee, and other interest holders, you have the right to compensation for your interest in the land should an expropriation ensue.

Under the Expropriations Act, compensation payable to any “Owner” of expropriated land is based on the following: market value of the land; damages attributable to disturbance; damages for injurious affection; and any special difficulties in relocation.

Market Value
Market value is defined as the price that at which a willing buyer and willing seller would transact in order to purchase the expropriated land. The date that the value of the property is determined for the purposes of the market value determination is usually the date at which the property is expropriated.

Disturbance Damages
The expropriating authority must pay to the Owner of the expropriated land all reasonable amounts that are a “natural and reasonable consequence of the expropriation.” The following types of expenses have been typically found to constitute disturbance damages:

  • Moving costs associated with the purchase of an alternate property;
  • An allowance to compensate for the inconvenience of finding another property;
  • Business losses resulting from the relocation or from a disruption to the business an the expropriated land.

Injurious Affection
Where the authorities do not require the entire property, they may expropriate only a portion of the owners land. The partial expropriation may result in a reduction in market value to the remaining land. Accordingly, the owner of the property may be entitled to compensation for the diminution in value of the remaining lands.

In some cases, owners are entitled to damages for injurious affection where no land has been taken.

Professional Fees
The Expropriations Act requires that the expropriating authority pay other expenses incurred by the owner, including professional fees and legal fees paid. Accordingly, expropriated property owners often have legal fees covered by the expropriating authority, and they will not have to pay out-of-pocket for representation.

Understanding Expropriations in Ontario

Goldstein Law is an expropriation law firm in Toronto. If you have been informed by the Crown or another expropriating authority that your property will be subject to expropriation, contact the Goldstein Law firm today to discuss your rights and obligations.

What is Expropriation?
An expropriation (or commonly referred to as ’eminent domain’ in the United States) occurs when a public authority takes a property owners land without consent. Such taking of land is often required for the public interest (i.e., to extend a highway or develop a city’s transit infrastructure).

When a statutory authority takes your land through an expropriation, you are entitled to receive compensation equal to the fair market value of the land and/or property taken.

Expropriation Process
Before the authorities engage in the expropriation process, they will seek to negotiate an amicable settlement with the property owner. If a settlement is unable to be reached, the expropriation process will ensure, one which is governed by the Expropriations Act in Ontario.

The expropriating authority is required to obtain the consent of the local city council in order to move ahead with the expropriation. The authority will publish a Notice of Intention for Approval to Expropriate, following which time the property owner has up to 30 days to request an inquiry into the expropriation. The inquiry is sought by owners to ensure that the expropriation is reasonably necessary and that no alternative exists aside from expropriation to accomplish the authorities objective.

Once an expropriation is approved (following an inquiry or otherwise), the authorities will serve on the property owner a notice of expropriation.

Have You Received a Notice of Expropriation?
When the government is set to expropriate your land, you will receive a Notice of Expropriation. The Notice will include, among other details, the date on which the authority requires possession of the lands and a date which the owner can select on which the property will be valued.

Following the issuance of the Notice of Expropriation, the authorities have the right to enter the property owners land to conduct an appraisal, which is then served upon the property owner.  The property owner has the choice whether to accept the offer by the authorities in full and final settlement of all expropriation related claims or to accept the offer while preserving the right to claim additional compensation. Where the latter option is chosen, the property owner will proceed through formal or informal negotiation in the Land Appeal Tribunal (formerly Ontario Municipal Board).

Expropriation is a complicated process that requires the assistance of experienced professionals (lawyers, valuators, real estate appraisers, land use planners, etc.).
Goldstein Law is well-versed in the case law related to expropriation and the necessary procedure to ensure you maximize the value of your expropriated business or property. Contact us today if you have any questions at 647-838-6740. 

Even if your property is not being directly taken, you may have a claim under the Expropriations Act in Ontario.

Inducement in Employment Law

Many employees will voluntarily apply for job positions and obtain employment on their own volition. However, in certain circumstances, a highly coveted employee may be recruited away from a long-term position for a new job with lofty promises.  These promises could include representations of long-term employment, salary raises, incentive compensation, and overall better work-life balance.  If a third-party employer or recruitment agency contacts you and induces you to leave long-term employment for a new job, this could have implications in the event your new position is terminated without cause after a relatively short period of time.

When determining the amount of severance pay an employee is entitled when terminated without cause from their employment in Ontario, the Courts will consider a number of factors, including the length of service the employee has been working with the company, the age of the employee, the level of seniority, and the amount of time the employee is expected to obtain replacement employment. Another factor that is relevant in determining the severance pay calculation is whether the employee was recruited away from previous long-term employment.

If an employee was induced away from a long-term job for a new employment only to be terminated without cause shortly thereafter, a Court may use the entire length of service (previous job + new job) for the purposes of calculating the terminated employees severance entitlement. Accordingly, inducement has the impact of increasing an employees entitlement to reasonable notice. In determining whether an argument of inducement will be successful, the Court looks at a variety of factors, including but not limited to:

-The expectation of the parties when the new employment agreement was entered into. Specifically, were representations made to the employee to suggest that a long-term employment relationship would be reasonably expected?  If a probationary clause is contained in the new employment agreement, this suggests tentative, or a trial employment, rather than permanent employment. Accordingly, a probationary clause in an employment agreement can undermine an argument of inducement;

-The length of time the employee remained employed in the company.  Inducement tends to be weakened the longer the length of time an employee remains employed with a new company.

There are many other factors that are relevant in determining whether an argument of inducement will be successful in increasing the reasonable notice period for an employee that has been terminated without cause in Ontario.  If you have recently been terminated from your employment after being recruited from a long-term position, please contact the Goldstein Law firm for a free consultation to discuss your rights.