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.

Offers of Compensation – Approving Expropriations

An expropriating authority is required to obtain the approval of the local council or “approving authority” in order to carry out an expropriation. An example of such approval is contained here

In the link, attached, permission is sought from the City of Toronto to expropriate and acquire temporary construction easements to facilitate the construction of the Toronto Spadina Subway Extension Project. As we have discussed here, temporary easements are strips of land contained in a property owners parcel, which is required by the authorities for an indicated period of time to carry out construction work. The authorities do not seek to acquire permanent interests in such property; as when the construction work is completed, access will no longer be required to such land, and full ownership reverts back to the property owner, with no easement or otherwise attached thereto.

The expropriating authority will always require that the property owner signs a Full and Final Release in exchange for the payment of compensation for the expropriation. It is imperative that the property owner carefully reviews the terms of the Release to ensure that future claims are not barred should they arise. For instance, in the above-referenced case related to a temporary construction easement, if the works take longer than initially anticipated, the authorities may need to extend the duration of the easement, which will result in additional compensation for the property owner. However, if the Release is drafted in a way that precludes the property owner from obtaining additional compensation for an easement extension, then substantial funds could be lost.

Accordingly, and given that expropriating authorities are required to reimburse reasonable legal and professional fees under the Expropriations Act, it is advisable to consult with an expropriation lawyer before signing any agreement for compensation.

What is Expropriation?

Government authorities such as municipalities, school boards, and provincial and federal governments undertake projects which require them to obtain land from private property owners. In many cases, the authorities only require a small portion of the private property owners’ land for an easement or for related purposes such as utilities, although, in certain instances, entire properties are required (i.e., full vs. partial expropriation).

The authorities will attempt to purchase the land required from a project through a negotiated process with the affected property owners. The first step in the negotiation process is a hearing with the Board of Negotiation at the Local Planning Appeals Tribunal (formerly Ontario Municipal Board). Absent successful negotiations, the authorities may use the expropriation process to ensure that the land is obtained in a specific timeline to suit their project needs. Simply, an expropriation is a transfer of lands or an easement to an authority for reasonable compensation, including payment for the fair market value of the transferred lands, without the property owners consent.

In Ontario, an expropriation by an authority must follow the process set out in the Ontario Expropriations Act to ensure that the rights of the property owners are protected.

Sometimes, authorities will seek a negotiated resolution while the expropriation process is underway. This approach is necessary to ensure that the lands are in the authorities possession in the necessary timeframe; however, it can also save costs of both sides. Expropriation proceedings can be discontinued and the land transferred to the authorities in exchange for the payment of the negotiated compensation.

If your land has been expropriated or the authorities require an easement on your property to accommodate a public work, call the expropriation lawyer at Goldstein Law Firm to ensure you maximize the compensation that you deserve in conjunction with an expropriation in Ontario.

Legal Fees in Expropriation Law Matters

The Expropriations Act in Ontario allows for claimants to be reimbursed for any legal fees incurred through the expropriation process, as long as they have been awarded 85.0% or more of the compensation that was originally offered by the expropriating authorities. The Expropriations Act will cover reasonable legal, appraisal, and professional fees that are associated with the expropriation.

In our expropriation law practice, clients can retain our expert expropriation law counsel without paying any fees out-of-pocket. We also have a team of advisors, including business valuators, land use planners, and appraisers, that may necessarily be engaged through the expropriation process, whose reasonable fees will be covered by the expropriating authorities. Accordingly, if your property is in the midst of an expropriation, it is best to consult with a qualifying expropriations lawyer as the Expropriations Act protects clients against the payment of substantial out-of-pocket legal and professional fees.

Easement Expropriations – Compensation

As we have mentioned here and here, the act of expropriation is a powerful mechanism available to public authorities to involuntarily purchase a property owners land. In many cases, the authorities will not require the entire building or land in order to carry out its public purpose. Rather, the majority of expropriations are partial expropriations, whereby the authorities seek to purchase a portion of land that resides in a property owners parcel.  The taking of easements is very common practice among expropriating authorities and it is imperative that property owners are sensitive to the amount of compensation that is being offered in exchange for the easement.

What is an Easement?

An easement is a right granted to a party to use a property owners land for a specific purpose. In the context of expropriation law, easements may be temporary or permanent. For instance, we have represented property and business owners in the York Region who have been served with Notices of Expropriation for both temporary limited interests (i.e., temporary easements) and permanent easements related to the York Region Viva Rapid Transit Corridor on Yonge Street from Sawmill Drive to Davis Drive in Newmarket.

The temporary limited easements typically related to authorities need to use various land that abuts the main roadway for construction purposes. Entries to parking lots and other laneways are often required by the contractors to store heavy construction equipment or as access points to enter and exit construction staging zones. Property owners have the obligation to accommodate the construction activities subject to their right to obtain compensation for the same.  Often, the easement agreements will be entered into for a period of time (i.e., one or two years); and, in exchange for the compensation obtained, the expropriating authority will be released from any claims for the indicated period.

In the event the construction is not finished within the estimated timeline, a common occurrence in the context of public construction works, the property owner will have the opportunity to negotiate further compensation. It is critical that the expropriated property owner negotiates an agreement for compensation that preserves their rights to additional compensation should the construction continue to interfere with their business beyond a projected date.  To this end, it is advisable to contact an expropriation lawyer to discuss the provisions around offers of compensation and negotiating expropriation-related agreements.

Goldstein Law Firm focuses on expropriation law and has experience with expropriation files related to various public construction projects, including but not limited to:

-Eglinton Crosstown LRT;
-York Region Viva Next Rapid Transit;
-Town of Oakville, Road Widening Projects;
-Finch West LRT Expansion.

Contact our expropriation law firm today for a free consultation!

TTC Modernization – Expropriations in Toronto

The Toronto Transit Commission (“TTC”) is expected to outgrow its current subway storage and maintenance capacity. As such, the TTC needs to pursue and acquire (i.e., expropriate) properties for additional capacity.  Such acquisition is ongoing, specifically with the Etobicoke region, as the TTC has identified approximately 73 acres of land to expropriate.

City Council has provided authority under the Expropriations Act for the same, and Notices of Application for Approval to Expropriate have been served on registered property owners. A Hearing of Inquiry was held in February 2018, and it was accepted that the TTC’s site is appropriate in size and location. Therefore, the expropriation was found to be fair, sound and reasonably necessary.

Ongoing negotiations with the owner have yet to result in the acquisition of the properties, expropriations will be required to meet the project timelines.  If you are a property or business owner that is impacted by a transit project, whether the TTC Modernization projects or any of the LRT projects around Ontario, it would be advisable to consult with an expropriation lawyer in Ontario today.