Under the Expropriations Act, the claimant is entitled to the reasonable costs incurred for the purposes of determining market value, injurious affection and damages for business losses resulting from an expropriation. Expropriation proceedings are distinguished from ordinary civil proceedings since expropriation is by definition involuntary, and the case of Dell Holdings espoused that full compensation is to be payable to the expropriated landowner to “make whole.”
How is a “Successful Expropriated Landowner” Defined by the Expropriations Act
The costs section in the Expropriations Act contemplated by section 32 cover all reasonable costs, including motions. A successful owner is entitled to an order directing the expropriating authority pay his or her reasonable legal, appraisal and other costs actually incurred for the purposes of determining compensation payable. While the determination of the amount of costs is another matter, the requirement to pay costs is mandatory. A successful owner is one who is awarded 85% or more of the amount offered by the statutory authority (sometimes called the “85% rule.”).
When Are Full Costs Ordered to be Paid?
The intention of the statute is to afford full indemnity costs to the owner so long as:
- it was reasonable to incur costs;
- the costs were incurred;
- the costs were incurred for the purposes of determining compensation; and
- the costs were reasonable in quantum.
What Offer from the Expropriating Authority is Relevant?
S.32 contemplates the “amount offered” which is the offer of compensation required by s.25(1) of the Expropriations Act to be furnished within three (3) months following the registration of the plan of expropriation; however, recent cases in Ontario, including Shergar v. Windsor, have held that subsequent offers to settle by the authorities may be relevant in determining the cost consequences of an expropriation claim. The LPAT has concluded that offers made by the expropriating authority from time to time and subsequent to a s.25 offer were properly admissible in determining the claimants’ entitlements to costs.