What is Expropriation Hearing of Necessity?
Expropriations, or the taking of private land by a public authority, are typically highly-stressful situations for landowners. With the power imbalance between the expropriating authority and the landowner being quite great, landowners can be left wondering how their rights will be enforced.
One such way to ensure owners can challenge the reasonableness of such a claim is through expropriation hearings of necessity. This post outlines their general function, and process, as well as some major legislative changes that have affected their utility in present times.
What is an Expropriation Hearing of Necessity?
An expropriation hearing of necessity (HoN) is held to determine if the expropriation in question is, “fair, sound, and reasonably necessary” to achieve the goals/objectives of the expropriation authority–as per Section 7(5) of the Act. Upon receiving a Notice of Application for Approval to Expropriate Land from the public authority seeking to expropriate your property, you as the registered owner have 30 days to request a hearing of necessity, according to Section 6(2) of the Expropriation Act.
These hearings were designed to give landowners losing their property a voice in an often unfortunate, and nonconsensual, annexation of land.
What is the Expropriation Hearing Process?
To determine the reasonableness of the expropriation, an inquiry officer (an independent third party appointed by the Attorney General) hears the case brought before them. Once they take into account both sides, they will generate a report outlining the proposed expropriation application and whether they think it has merit. It is important to note that this report is non-binding, meaning that it does not force legal action. However, it can increase the landowner’s case in the court of public opinion, and potentially sway the expropriating authority to adjust the scope of their project–such as a full property takeover being mitigated to partial property acquisition for easement use.
Once this report is complete, it will contain the following information:
- Summaries of the evidence and arguments advanced by both sides
- The findings of fact in the matter
- The officer’s formal opinion on the merits of the expropriation, and their reasons for such
This report is presented to the landowner and the approving authority of the land takeover, who is typically the Minister of the associated department (e.g. a highway expropriation project will be approved by the Minister of Transportation). In cases involving municipalities or school boards, the council/board will be their own approving authority. Again, the approving authority is not bound by the report but must consider its contents and offer reasons why it is continuing with the expropriation.
How Much Compensation Can be Expected from an HoN?
Different from the determination process for compensation of expropriation, the possible range of compensation that a landowner may gain from a hearing of necessity is statutorily capped at $200–for legal fees connected with the hearing. As with the formal report the inquiry officer gives, this amount cannot be legally compelled to be paid by the expropriating authority, only recommended. Because of the non-binding status of these recoveries, and the risk of acquiring undue legal fees for a poor outcome, we highly recommend seeking out an expropriation lawyer.
What Happens if a Hearing of Necessity is not Requested?
If a hearing of necessity is not requested by the landowner, the approving authority will consider the expropriation application and decide whether to grant the endeavor or refuse it. If approved, the expropriating authority must register a Plan of Expropriation on the title of the lands to be acquired (either in full or in part). Then the standard steps of expropriation will proceed as per usual.
Changes to Hearings of Necessity of Expropriation in Ontario
It is salient to point out that though hearings of necessity offer an albeit shaky voice to landowners in Ontario, there is a caveat associated with these hearings that has been exacerbated in recent years. Section 6(3) of the Act outlines situations where the Lieutenant Governor may elect to forgo the expropriation hearing of necessity. Namely, in matters where it is necessary or expedient in matters of public interest.
In these cases, no hearing will be given whatsoever for the proposed land takeover. This effectively cuts out any criticism the landowner may have been able to bring to the table. However, this clause has rarely been used in practice.
With that context in mind, recent legislative changes in the past few years have elaborated on what types of circumstances may allow for HoN exemptions. With the enactment of Bill 171 (Building Transit Faster Act) in July 2020, certain transit projects located in the Greater Toronto Area that are given a ‘priority’ status are exempt from HoN requirements–so long as the land to be acquired is designated by Council as “transit corridor land.” These transit projects were the Ontario Line, Scarborough Subway Extension, Yonge North Subway Extension, and Eglinton Crosstown West Extension. Later in 2020, the same Act–along with the Transit-Oriented Communities Act–were amended to include any other prescribed provincial project.
More recently, Bill 245–the Accelerating Access to Justice Act–was put in force to amend the Expropriations Act concerning HoNs. Currently, the standard hearing of necessity procedure remains intact, but with the Ontario Land Tribunal conducting the hearings, the long-standing $200 cap on costs payable to the landowner may be increased by regulations brought into effect. More saliently, the government can now enact–on-demand–additional regulations that would exempt additional types of projects from the hearings of necessity requirements. This change includes municipal projects such as schools, roads, etc.
Though this change has created more situations in which expropriating authorities can circumvent hearing of necessity, it has added some characteristics helpful for landowners. For one, the newly created Section 8.1 of the Expropriations Act now allows the Minister to establish regulations under which landowners can offer comments to expropriating authorities regarding the proposed land takeover.
Pursuant to Section 8.1(1)(a), the expropriating authority must take those comments into account when deciding on a course of action. However, how these comments are to be evaluated has not been sufficiently described to be helpful to landowners.
What is a Landowner’s Best Chance at Challenging Expropriating Authorities?
After reviewing the legislation changes and the current structure of expropriation hearings of necessity, we think your best chance to have your voice heard is with the help of an expert. As noted above, the cost-to-benefit ratio of pursuing a hearing of necessity in Ontario is not generally advisable–unless you are well-prepared. Though reversing an expropriation project is near-impossible, arguing for fair treatment, compensation, equitable land valuation processes, business losses, and relocation expenses, is not. Get in touch with one of our expropriation law experts today and let’s get you the results you deserve, and the advice you need to succeed.