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Does a Property or Business Owner Subject to an Expropriation have to pay legal fees?

The short answer is on. What follows is a more in depth overview:

Costs in Expropriation A Primer On Expropriation Law

Expropriation is one of the ultimate exercises of government authority and the Expropriations Act, RSO 1990, c. E-26 (the “Expropriations Act”) is designed to make landowners whole when their property is taken without their consent.  The Supreme Court of Canada held that the “whole purpose” of the Act is to provide the private land owner, who has been subject to the expropriation of property, with “full and fair compensation.”

Costs (s.32)

In expropriation proceedings the risk of counsel for the claimant not being paid is substantially lower than the risk would be when representing clients in normal litigation. In all but unusual circumstances, the expropriating authority is responsible for the payment of the claimants solicitor.  Section 32 of the Act generally provides for the recovery of full indemnity costs by an expropriated landowner.

s.32(1):

Where the amount to which an owner is entitled upon an expropriation or claim for 

injurious affection is determined by the Tribunal and the amount awarded by the Tribunal is 85 per cent, or more, of the amount offered by the statutory authority, the Tribunal shall make an order directing the statutory authority to pay the reasonable legal, appraisal and other costs actually incurred by the owner for the purposes of determining the compensation payable, and may fix the costs in a lump sum or may order that the determination of the amount of such costs be referred to an assessment officer.

The section is clear – the Board “shall” make an order. A successful owner is one who is awarded 85% or more of the amount offered by the authorities. For example, if an owner is provided $100.00 as an initial payment for the market value of the lands taken and ultimately recovers a total award of $86.00 for all damages including market value, the owner’s entitlement to costs is triggered. 

s.32(2):

Where the amount to which an owner is entitled upon an expropriation or claim for injurious affection is determined by the Board and the amount awarded by the Board is less than 85 per cent of the amount offered by the statutory authority, the Board may make such order, if any, for the payment of costs as it considers appropriate, and may fix the costs in a lump sum or may order that the determination of the amount of such costs be referred to an assessment officer who shall assess and allow the costs in accordance with the order and the tariffs and rules prescribed under clause 44 (d).

The language “the Board may make such order, if any, for the payment of costs as it considers appropriate” provides discretion for the Tribunal to make a costs award against the landowner in the event the owner does not achieve 85 per cent or more of the amount offered by the statutory authority.  When the authority is successful and a claim is dismissed entirely, the “below 85% threshold” in s. 32(2) of the Expropriations Act is engaged because the award is less than any offer presented by the authority. This section empowers the Board, where a claim has been dismissed, to deny costs to the claimant or order that the respondent (expropriating authority’s) costs be paid by the claimant. 

Which “Amounted Offered”? 

Some decisions held that an owner could recover full indemnity legal and appraisal costs in accordance with section 32(1) as long as it achieved 85 per cent or more of the expropriating authority’s offer made pursuant to section 25 of the Act (“Section 25 Offer”).  

Other decisions held that an owner was required to achieve 85 per cent of subsequent higher offers made by the expropriating authority, including those made pursuant to Rule 49 of the Rules of Civil Procedure, RRO 1990, Reg 194 (“Rule 49 Offer”).

Shergar v. Windsor (City) 2020 ONCA

Costs can be awarded to the statutory authority under s.32 of the Expropriations Act for settlement offers that were unreasonably rejected.  Previously, costs awards under s.32 were based on the amount of the s.25 offer made by the authority; however, this case expands the Tribunal’s scope to award adverse costs for any subsequent offer made by the authority.

What Costs are “Reasonable”?

The Board’s Rules of Practice and Procedure provide that where a matter is not covered in those rules, the Board may follow the Rules of Civil Procedure. The factors enumerated in rule 57.01 of the Rules, are instructive: 

Reasonable Costs under the Rules of Civil Procedure 

58.06 (1) In assessing costs the assessment officer may consider, 

  1. the amount involved in the proceeding; 
  2. the complexity of the proceeding;
  3. the importance of the issues; 
  4. the duration of the hearing;
  5. the conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding; 
  6. whether any step in the proceeding was, (i) improper, vexatious or unnecessary, or (ii) taken through negligence, mistake or excessive caution; 
  7. a party’s denial of or refusal to admit anything that should have been admitted; and 
  8. any other matter relevant to the assessment of costs

“Reasonableness” does not prevent costs from being in excess of total amount awarded as compensation.  In Johnson v. MTO LCR 296 1975, the compensation awarded was $60,000 and the costs $84,000. 

DIS-ALLOWING CLAIMANTS COSTS


Under the LPAT Rules of Practice and Procedure, the Tribunal may only order costs against a party if the conduct or course of conduct of a party has been unreasonable, frivolous or vexatious or if the party has acted in bad faith.

Costs – 23.09. Circumstances in Which Costs Order May be Made:


(a) failing to attend a hearing event or failing to send a representative when properly given notice, without contacting the Tribunal; 

(b) failing to give notice without adequate explanation, lack of co-operation with other parties during pre-hearing proceedings, changing a position without notice to the parties, or introducing an issue or evidence not previously mentioned or included in a procedural order; 

(c) failing to act in a timely manner or failing to comply with a procedural order or direction of the Tribunal where the result is undue prejudice or delay; 

(d) a course of conduct necessitating unnecessary adjournments or delays or failing to prepare adequately for hearing events; 

(e) failing to present evidence, continuing to deal with issues, asking questions or taking LPAT Rules of Practice and Procedure April 3, 2018 – 28 – steps that the Tribunal has determined to be improper; 

(f) failing to make reasonable efforts to combine submissions with parties of similar interest; 

(g) acting disrespectfully or maligning the character of another party; 

(h) knowingly presenting false or misleading evidence; or 

(i) breaching a confidentiality requirement of a mediation, settlement conference or of a decision of the Tribunal in the hearing of the merits. The Tribunal is not bound to order costs when any of these examples occur as the Tribunal will consider the seriousness of the misconduct. 

PERTINENT CASES

Given the more recent trend by the LPAT to awards costs to an expropriating authority, counsel for claimants are wise to inform their clients about the potential cost consequences of proceeding with an unmeritorious claim. 

Shergar Development Inc. v. Windsor (City) 2020 ONCA 490 – Offers subsequent to S.25 are relevant in fixing costs

Costs can be awarded to the statutory authority under s.32 of the Expropriations Act for settlement offers that were unreasonably rejected.  Previously, costs awards under s.32 were based on the amount of the s.25 offer made by the authority; however, this case expands the Tribunal’s scope to award adverse costs for any subsequent offer made by the authority. 

HELD: Shergar refused to accept an offer equivalent to $1,208,155 when their interest was limited to $266,832. Shergar also frustrated and delayed the determination of the issue of the appropriate compensation to be awarded to the subject lands. The Court ruled that this conduct is worthy of censure. Shergar’s actions resulted in significant delay and frustration, wasting the Board’s valuable time. Shergar’s interpretation would otherwise permit the prospect of an unreasonable claimant delaying proceedings, running up legal costs, and wasting the Board’s resources, safe in the knowledge that unreasonable refusals of subsequent offers cannot adversely affect its entitlement to legal costs.

Pitblado v. Oakville 2006, 90 LCR 156, 2006 CarswellOnt 2574 (O.M.B.)

An otherwise narrow interpretation of the Act would require the authorities to guess the market value of the subject property at the outset. That said, the Board has rejected the authorities attempt to rely on a subsequent offer of compensation to determine the claimants entitlements to costs; as in this case where the authority attempted to rely on an offer made two years before the expropriation. 

Willies Car & Van Wash Ltd. v. Simcoe County – Failure to Avoid Unnecessary Costs

Claim was for injurious affection no land taken, and the claimant failed in its claim for the following reasons: 

  • The claim was statute-barred by the one-year limitation period set out in s. 22 of the Expropriations Act
  • The Appellant failed to meet the legal threshold for establishing injurious affection where no land is taken
  • The Appellant did not demonstrate that the Respondent’s construction caused any reduction in its business.
  • The Appellant did not present sufficient evidence to demonstrate that it suffered compensable damage.

The Board found that unnecessary costs could have been avoided if the Appellant had accepted the Respondent’s offer that was made early in the proceeding.  The Board also found that the offer was bona fide and intended to achieve a settlement of the claim before substantial costs were incurred. The Board concluded that the Appellant “at its own peril, ignored the offer as well as the challenges with respect to the facts of the case and the applicable law and must now face the consequences of its actions”. The Appellant’s conduct in refusing the offer was “unreasonable”. As a result, the Board stated that it should be responsible for some of the Respondent’s costs incurred in defending a claim that had no merit.

The Board substantially reduced the Respondent’s costs as follows:

  • Legal Costs: $60,009.20 (This was a 50% discount of $120,018.40).
  • Experts Costs: It discounted the expert costs by 40%. The starting point was $44,888.15, discounted to $26,934.00.
  • Total costs allowed: $86,943.20.

Disposal Services Ltd. v. Toronto 5 LCR 91, 1973 CarswellOnt 1358 – Where “Nil” Offer

Where there is solely a claim for injurious affection or whether the authority has failed to make an offer on expropriation and the Board dismisses the claim altogether, both sides will likely be ordered to bear their own costs up to the date of an offer, and if rejected, costs agent the claimant after that date. 

Whitnall v. Sarnia (City), 68 LCR 291, 1991 CarswellOnt 5346 (OMB)

  • Claimants failed in claim for injurious affection were no land had been taken 
  • Claimant refused two separate offers to settle and ultimately received no award of compensation at the hearing
  • Rule 49 of the Rules of Civil Procedure was applied and awarded costs to the respondent 

To incorporate the cost consequences of Rule 49 of the Rules (which was designed to dissuade frivolous claims by creating cost risks for Plaintiff’s), the Expropriations Act is a remedial statue…

Davoodian v. Dufferin Wind Power 2019 CanLII 101734 

Electrical transmission line installed that abutted the land owned by the claimants.  Business damages as a result of injurious affection from the construction of the transmission line was sought. The Respondent was totally successfully at the Hearing; the Claimant rejected two offers to settle; and the issues were not particularly novel. The Tribunal made an award of partial indemnity costs to be paid by the Claimant.

Disbursements

Hamilton v. Lax (1972) 47 LCR 84
https://www.canlii.org/en/on/onsc/doc/1992/1992canlii7656/1992canlii7656.html?autocompleteStr=hamilton%20(city)%20v.%20lax%20&autocompletePos=1#document

Interest charges on money borrowed to fund expropriation expenses will be disallowed where the owner had funds available from the advance payment paid by the authority to provide for those expenses.

Assessment Officer Decisions 

  • Where a hearing was unduly length and repetitive, the Board recommended a reduction in the counsel fee for 171/2 to 8 days; 
  • Where a claim for business loss was dismissed and the Board found no credible evidence to support the claim, it disallowed the counsel fee for the time involved presenting the claim; 
  • Separately registered owners failed to give evidence to support there were any separate or conflicting issues requiring each to be represented by separate counsel. The Board directed to Assessment Officer to disallow the separate legal costs of one of the two counse

Valuations in Expropriation

What is Expropriation?

Expropriation occurs when an authorized public authority takes private property without consent of the owner. In Canada, public authorities have the right to take private property, as long as the appropriate government body approves the acquisition.

Given the imbalance of power between the landowner and the government, numerous safeguards are in place to protect the property owner in the expropriation process. One of these safeguards ensures the property owner is entitled to “be made whole” for any property taken. This may include:

  • The fair market value of the expropriated property at the date of expropriation;
  • Losses attributable to the adjoining land;
  • Compensation for reasonable legal or accounting fees associated with the expropriation;
  • Relocation costs for a business, or if a business cannot be relocated, the value of the goodwill of the business;
  • Reasonable business losses attributable to downtime; and/or
  • Interest for unpaid parts of the claim at a prescribed rate

As a practical matter, Chartered Business Valuators (“CBV”) and other professionals are usually retained to assess the quantum of damages suffered by the expropriated business owner.

Why do I need a Valuation?

Generally, a CBV becomes involved in expropriation matters when the taking of real property adversely affects a business. Examples include:

  • Business Closure: When a business’s property is taken and the business is unable to relocate and must close;
  • Business Relocation: When a business’s property is taken and the business is forced to relocate;
  • Business Disruption: When part of the business’s property is taken and the reduced utility of the remaining property results in extra costs for the business; or
  • Construction Loss: in an injurious affection scenario, where no property is taken, but a business is impacted by construction-related activities that occur in close proximity to its property.

In general, these losses exist in one of two categories: past losses and future losses.

Past losses occur between the date of the expropriation and the date of the valuation. Past losses are calculated by assuming that, had the expropriation not occurred, the business would have continued as normal. The CBV will use the historical profitability of the business as the basis of the quantification, adjusted for any industry trends, market trends, and other factors deemed appropriate.

Future losses occur after the date of the valuation. Unlike past losses, future losses are, by their very nature, speculative and involve many assumptions. If the business is unable to continue operating, the CBV may quantify the businesses goodwill [hyperlink to goodwill blog] as the future loss. If the business is able to relocate and continue operations, the CBV may need to estimate how profitable the business will be at the new location, and estimate how far in the future the losses attributable to the expropriation will continue.

Registering Plans of Expropriation

When an expropriation is approved by an “approving authority” (as defined by the Expropriations Act in Ontario), the expropriating authority will register a plan of expropriation on the title to the expropriated lands.

Once the plan of expropriation has been registered, title, or ownership of that portion of the expropriated land “vests” in the expropriating authority (but this does not give the expropriating authority the right of possession).

After the plan of expropriation has been registered on title, the expropriating authority will serve all registered owners with: (i) a Notice of Expropriation, which provides notice that the lands have been expropriated; (ii) a Notice of Possession, indicating the date on which the expropriating authority requires possession of the lands; and (iii) a Notice of Election, which permits the owner to select one of three dates upon which compensation for the lands expropriated will be based.

After service of the notice of expropriation, the expropriating authority may enter on the expropriated lands (with the owner’s consent, or upon an order issued by the Local Planning Appeals Tribunal) in order to view the lands for the purpose of preparing an appraisal report, which is intended to support of Offer of Compensation for the expropriated lands in accordance with Section 25 of the Expropriations Act.

Once an appraisal report has been prepared, the expropriating authority will provide a copy of the report to each registered owner, along with an offer of compensation for the owner’s interest in the lands expropriated. Owners then have two options: (1) accept the offer in full settlement of all claims under the Expropriations Act; or (2) accept the offer while preserving the right to claim additional compensation from the expropriating authority. Where the second option is selected, owners can assert their claim for additional compensation through formal or informal negotiation, or through arbitration at the Local Planning Appeals Tribunal (formerly the Ontario Municipal Board). Often, negotiation and arbitration proceedings are pursued simultaneously.

Please note that the above-referenced expropriation procedures are only applicable to expropriations in Ontario – and expropriation legislation and the associated processes and procedures vary from province to province.

Initial Steps in the Expropriation Process

Pre-Expropriation Procedures

Prior to commencing the expropriation process, the authorities may approach the owner directly in an attempt to negotiate a settlement without initiating potentially time-consuming expropriation proceedings. In which case, the authorities will approach the property owner with an appraisal report in an attempt to negotiate a settlement. If the property owner and authorities cannot reach an amicable resolution, the next step is for the expropriating authority to publish a notice of application for approval to expropriate lands.

Notice of Application for Approval to Expropriate Lands

Upon commencing an application for approval to expropriate lands to an approving authority (i.e., local municipal council), the town or region must publish the Notice of Application for Approval to Expropriate Lands in a public domain (i.e., a newspaper with general circulation in the relevant region where the expropriation will be undertaken).

Any owner which is given notice of the expropriation has the right to request a Hearing of Necessity with an inquiry officer to conduct an assessment into whether the expropriation is fair and necessary in light of the objectives of the public work.  The request for a Hearing of Necessity must be made to the authorities directly in writing within 30 days of receipt of the notice of approval to expropriate lands.

If no Hearing of Necessity is requested, the local approving authority will determine if the expropriation can proceed.  If approval fo the application is granted by the “approving authority” (as defined by the Expropriations Act), the authorities have 90 days to register a Plan of Expropriation on the title to the lands it requires. Once the Plan of Expropriation is registered on title, ownership vests in the authorities (although possession of the lands will often remain with the property owner).  There are a number of technical additional steps that occur following the registration of the expropriation plan, which steps are governed by the provisions of the Expropriations Act in Ontario.

Given the breadth of infrastructure upgrading and improvements across the Province of Ontario, various regions are initiating the expropriation process; as such, we have provided examples of the published notices of approval to expropriate lands from various authorities, as listed below:

Region of Waterloo

Town of Oakville

Town of Collingwood

City of Kingston

Dealing with a Pending Expropriation

If you are a property or business owner that has been served a notice of application for approval to expropriate lands, an experience expropriation lawyer will help you navigate the technical complexities and timelines as prescribed by the Expropriations Act.  For more information on expropriations, visit our main page here or give us a call at 647-838-6740.

Registered Property Owners in Expropriations

Municipalities in Ontario are engaging in the expropriation process to involuntarily purchase private property for various infrastructure works.  For example, in the City of Toronto, the authorities have acquired an interest in private property in order to accommodate the upgrading and enhanced of Donlands Subway Station.  See a copy of the summary of the project and of the expropriated property interests here.  This project is an important insofar as it enhances accessibility requirements at this subway station and complies with the legislative changes as implemented by the Accessibility for Ontarian’s with Disabilities Act, 2005 (AODA).

The City of Toronto posts a partial list of expropriated properties here.  In addition, prior to expropriation, the authorities are required to publish a notice of the application of intention to expropriate land once a week for three weeks in a local newspaper where the lands are situated (section 6(1) of the Expropriations Act).  In addition, the notice of the application of intention to expropriate is served on the registered owner(s) of the property.

Registered Owner is defined by the Expropriations Act as follows:

An owner of land whose interest in the land is defined and whose name is specified in an instrument in the proper land registry or sheriff’s office, and includes a person shown as a tenant of land on the last revised assessment roll; (“propriétaire enregistré”)

The above-referenced definition of the registered owner is rather broad and encompasses anyone with an interest in the property.  Tenants in common, individuals with small and limited ownership interests, mortgagees, other security-interest holders, lien-holders, those with spousal interests, and otherwise, are all entitled to notice of the expropriation and to have their rights preserved and protected in the expropriation process.  Authorities will generally require a Full and Final Release from all registered owners of the property in order to effectuate a payout on account of expropriation. As such, it can often require extensive time and coordination amongst the registered owners of the property if their interests are not all aligned.

Authorities typically prefer an amicable resolution with property owners related to expropriation claims, especially with respect to smaller, partial takings and temporary easement. However, given construction timelines and public budgets, authorities typically commence the expropriation process in parallel with attempts at an amicable resolution.  If a negotiated settlement with the expropriated property owner is not attainable, the more formal timelines and procedures of the Expropriations Act will be employed by the authorities in order to take possession of the lands and commence construction works.

 

Notice of Application for Approval to Exproriate Land

As has been discussed, expropriation is a taking of land without consent of the owner by an expropriating authority. An understanding of the expropriation process is essential for lawyers and appraisers to properly consult property owners and business owners that are subject to land acquisition by governmental authorities.

Time Requirements in Expropriations in Ontario 

The first step in the formal expropriation process is for the authority to serve a Notice of Application for Approval to Expropriate Land on the registered owner of the property.  A registered owner is an owner whose interest in land is registered or specified in an instrument in the Land Registry Office.  The authority is required to publish the Notice of Application for Approval to Expropriate Land for three consecutive weeks in a local newspaper where the lands are situated.

Once served with the document, the owner has 30 days to request a hearing of necessity, where the authority must demonstrate that the expropriation is fair, sound and reasonably necessary. Often, the hearing has reduced the scope of an acquisition from a fee simple taking to easement takings or to amend construction plans to minimize the impacts on the property.

Once the expropriation plan is approved, the authority must register the Plan of Expropriation within 3 months, at which time legal title to the expropriated lands vests with the expropriating authority. An owner can remain in possession of the land following registration of the expropriation plan, the owner is no longer the legal owner of the lands specified in the plan.

Other Time Requirements

After registering the Plan of Expropriation, the authority has 30 days to serve Notices of Expropriation and Election. The Notice of Expropriation notifies the owner that an expropriation has occurred and the legal title has vested with the authority. The Notice of Election provides the owner with a valuation date to select for the purposes of determining compensation. The valuation dates are either:

a. the date the notice of hearing for an inquiry was served;

b. the date of the registration of the Expropriation Plan; or

c. The date on which the owner was served the Notice of Expropriation.

In addition, the authorities will serve a Notice of Possession, indicating that the authorities will take possession of the lands at least 3 months after the date of service, before which, an offer of compensation pursuant to Section 25 of the Expropriations Act must be served on the property owner.

For more information about timelines and provisions of the Expropriations Act, it is imperative to consult with a lawyer and land appraiser early in the process in order to document the state of the property prior to the expropriation for comparison purposes in order to maximize the value of the property on the valuation date.

Expropriation in Ontario

As we have discussed in our expropriation law blog posts, we represent property owners and business owners in claims against government authorities when land is involuntarily purchased for a public purpose. The Municipal Act 2001 S.O. 2001, c. 25, in Ontario, provides that the power of a Municipality to acquire land under the Municipal Act, or any other Act, includes the power to expropriate land in accordance with the Expropriations Act.

In order to authorize an expropriation of land, the municipality must obtain the consent of the governing council to carry out the property acquisition. Once approval is obtained from municipal council to proceed with the purchase of land, a Notice of Application for Approval to Expropriate Land is delivered to the property owner, following which a series of steps is taken by the authorities, typically including but not limited to as follows:

a) a Plan of Expropriation be obtained and registered on title to the Lands;

b) the Notice of Expropriation, Notice of Possession and Notice of Election be served upon the owners of the Lands;

c) an appraisal report for expropriation purposes be obtained to establish the market value of the Lands;

d) the owners of the Lands be served with an offer in accordance with Section 25 of the Expropriations Act;

e) payment of compensation offered pursuant to Section 25 of the Expropriations Act, be made upon acceptance by the owners of the Lands;

f) all necessary steps required to be taken to obtain possession of the expropriated Lands.

If the property owner does not accept the section 25 offer of compensation in full and final satisfaction of their rights in the property, the owner may commence further legal action, engage their own property appraiser, and proceed with negotiation at the Board of Negotiation or an arbitration process through the Local Planning Appeals Tribunal (LPAT) for a determination of the proceeds of expropriation.

Expropriations Update in Ontario

As we have discussed here and has been discussed here and here the municipal governments across Ontario are undertaking various infrastructure projects that require the expropriation of land from private property owners.  As Goldstein Law Firm, we specialize in expropriation law, having helped property and business owners in various projects across Ontario, including but not limited to the following:

Eglinton Crosstown
Hurontario LRT
Hamilton LRT
Speers Road Widening
Trafalgar Road Widening
Yonge Street Road Widening

If you are a property owner being impacted by any of the above-referenced construction projects or any other project across Ontario and you have received a Notice of Application for Approval to Expropriate Land, it is best to consult with an experienced expropriation lawyer to advise you of your rights.  We do not charge any up-front fees in expropriation matter, and authorities are required to reimburse all reasonable legal and professional fees incurred by the property owner through the course of the expropriation.

As such, there is absolutely no cost to you for contacting and consulting with an expropriation lawyer.  Call Goldstein Law at 647.838.6740 today!