Challenging Expropriation in Ontario: A Guide to Asserting Your Rights
Brief Summary: Public authorities are empowered by law to take ownership of private property where necessary. However, that power is not absolute, and property owners may have recourse against some or all aspects of an expropriation.
When a citizen or a business entity in Ontario purchases some real property – a house, or an office building, for example – they might imagine that property as belonging to them absolutely. Barring a voluntary decision to sell it later on, or some failure to keep up with the associated financial obligations, many assume they are secure in their ownership of their own property. It often comes as a jarring surprise, then, when the same parties realise that public authorities are able to leverage the law against private entities to take ownership and possession of that very same property. Indeed, many parties discover the existence of expropriation laws in a very practical sense when they are forced to confront its application against their home or place of business.
Unfortunately, expropriation is a very real and not infrequently used tool at the disposal of public authorities in Ontario. However, the situation is not totally bleak for victims of expropriation; Ontario law does provide for just compensation for the expropriated property and offers several possible avenues to challenge the taking and amount of associated compensation. This article will explore the fundamentals of expropriation law and elaborate some of the ways in which private entities may flex their legal rights in the face of expropriation.
The Concept of Expropriation
Expropriation is not a recent creation, nor is it unique to Ontario law. Rather, Ontario, like many other provinces, has inherited the concept from a longstanding legal tradition shared by many other jurisdictions, including the United States, Great Britain, and several countries internationally. Though sometimes called by other names in different places – “eminent domain”, for example, or “compulsory acquisition” – the various iterations of expropriation globally tend to share the same fundamental principles.
Simply put, expropriation describes the legal concept of a public authority legitimately seizing some interest in a property held by a private party, without that private party’s consent, in order to advance some specific government objective in the public interest. The concept implies some degree of process to ensure that the taking of private property is done fairly, in accordance with the law, and intends to compensate the private owner for the value of the property interest taken by the expropriating entity.
However, unlike in many jurisdictions, property rights in Canada are not constitutionally enshrined, and the only entitlements to property a property owner has in Ontario during an expropriation are provided by statute and elaborated in case law. It is therefore important that Ontario property owners facing expropriation understand the legal origins of the expropriation process, the rights afforded to them by that system, and how to ensure those rights are being upheld to the full extent of the law. In some cases, having such an understanding will enable them to challenge aspects of the expropriation, or even defeat the expropriation altogether.
Overview of Ontario’s Expropriation Process
A general understanding of the expropriation process is an important prerequisite to understanding how one might challenge a proposed expropriation of their property. In Ontario, most expropriations will proceed in accordance with Ontario’s Expropriation Act (referred to as the “Act” throughout this article). The Act also establishes the entities that may have the authority to expropriate (“Expropriating Authorities,” or “EAs”) and under which circumstances.
Before an expropriation may occur, there are some preliminary steps the EA must observe. At this stage, the EA must seek approval from the Approving Authority (“AA”) (the identity of which varies from case to case – it is often a municipality or cabinet Minister) to proceed with expropriation. Before the AA may approve, the owner of the property in question is typically entitled to request a hearing at which to challenge the necessity of the expropriation as a means of accomplishing whichever government objective is identified as the reason for expropriation. Hearings of this kind are known as Hearings of Necessity (“HoN”) and are heard by an appointed Inquiry Officer (“IO”). The IO reports their findings and recommendations from the HoN as to the necessity of the expropriation.
Having received the EA’s application to expropriate, the AA will make a decision to approve or not approve the expropriation. If a HoN was granted and held, the AA must consider the IO’s report and issue a written explanation of their decision; however, they ultimately have broad discretion in reaching that decision. Where the AA does decide to approve the expropriation, a Certificate of Approval is issued to the EA that allows them to proceed with the business of expropriation. This represents the end of the preliminary matters and commences the formal expropriation process.
Within three months of obtaining approval, the EA registers a Plan of Expropriation (“PoE”), at which point the specified title officially vests in the EA. From that point forward, essentially the only details to be ironed out are the value of the compensation the owner will receive, and the date until which the owner may continue to occupy the property. However simple these steps may sound, they present many opportunities for aspects of the expropriation to be negotiated, challenged, litigated, or appealed.
Grounds for a Challenge
So, how does one challenge an expropriation? What recourse does a property owner have if their property is targeted by an EA? Answering these questions requires breaking them down with a little bit more specificity. As it turns out, many aspects of an expropriation can be challenged, and the potential outcomes and advisability of each vary greatly.
How can the necessity of an expropriation be challenged?
Despite an owner’s understandable sense of grief and resentment at the taking of their property, there is relatively little to be done about an expropriation that accords with the statutory provisions of the Act. On the other hand, expropriations that fail to live up to the requirements of the Act can have their legitimacy challenged. The HoN process is an example of such a challenge.
HoNs exist to allow owners to argue that the proposed expropriation fails to meet the statutory requirement that an expropriation be “fair, sound, and reasonably necessary in the achievement of the objectives of the expropriating authority” to accomplish the EA’s objectives. These adjectives are generally coalesced under the heading of “necessity”, though an important clarification must be made here: “necessity” in this context refers not to that of the EA’s ultimate objective for which they are seeking expropriation. Rather, only the necessity of the expropriation as a means of achieving that objective can be attacked.
HoNs certainly serve an important purpose and may indeed lead to an expropriation being scrapped altogether in some cases. However, successfully convincing the IO that an expropriation is unnecessary is still not guaranteed to have any effect. Ultimately, the decision about the necessity of an expropriation belongs to the AA, and while they must consider an IO’s report, they may still choose to depart from the IO’s findings entirely.
Given that many EAs act as the AA in their own expropriations, it is perhaps unsurprising that the majority of HoNs are unsuccessful. Compounding the problem is the fact that IOs are not bound to follow decisions from prior HoNs in the way that judges must follow prior jurisprudence, adding an element of unpredictability to even a well-researched challenge. And, parties to HoNs are limited to recovering $200 in costs associated with the hearing, even when successful. These disadvantages and limitations should be factored into any decision to request a hearing.
How can the amount of compensation be challenged?
The rules and procedures around determining compensation represent a sizable chunk of expropriation law. The topic is highly complex but is also likely to contain the most fertile grounds for an effective challenge to expropriation. This section will lightly cover the basics; however, it is recommended that legal advice be sought before accepting or seeking further compensation.
Generally, there are a few categories of compensation that an expropriated owner can seek. Not every owner will be entitled to seek every category of payment, as entitlement is heavily dependent on the facts of the case. This section will focus on compensation for the market value of the property but be aware that other arguments for additional compensation may be made through similar processes to those outlined below. These broad categories of compensation, according to the Act, are as follows:
- Compensation for the market value of the land;
- Damages attributable to disturbance;
- Damages for injurious affection; and
- Damages for special difficulties associated with relocation.
Procedurally, compensation may first arise as an issue prior to any other expropriation proceedings in the form of an offer from the EA to purchase the owner’s property amicably. Owners are often advised not to act on any such offers without consulting with at least a lawyer and perhaps additional property appraisers, as these initial offers may seek to obtain the property for less than the owner might otherwise be entitled to.
Beyond the initial stages, compensation is next encountered after the expropriation has been approved and the PoE has been filed (but before the EA takes possession of the property). The EA must make the owner an offer of compensation no more than three months following PoE registration. Again, owners are entitled to accept whatever amount is offered here, but doing so may limit their ability to seek any additional compensation. They may instead wish to refuse the offer and seek additional compensation, or accept the offer without prejudice, meaning they reserve the right to seek additional compensation beyond the market value of the expropriated property.
Where the owner does not accept the EA’s initial offer, they can enter a process of negotiations that typically involve the exchange of appraisals and other documents supporting each party’s position regarding market value. Note that the appraisal must not account for the effect on market value that the expropriation itself may have on the property. Rather, the owner should have elected a valuation date as of which the fair market value of the property should be determined as though it were being sold in the ordinary course.
Owners who are unable to negotiate an agreement on an acceptable amount of compensation may resort to the Board of Negotiation to mediate a further negotiation between the parties. If still unresolved, the matter may be finally brought before the Land Planning Appeals Tribunal for binding arbitration (a litigation-like proceeding in which an arbitrator reaches a decision that the parties agree to follow).
What other avenues of challenging expropriations exist?
Earlier, we explained how expropriation solely exists due to the operation of statute, and how expropriations can be challenged for failing to comply with such legislation. HoNs (discussed above) are one example of how such a challenge can be brought. However, the necessity of an expropriation is far from the sole criterion of a lawful expropriation. Owners may therefore find success in court if they can demonstrate other non-compliance with the Act.
Owners may apply to challenge an expropriation’s legitimacy in court on the grounds that the EA does not have statutory jurisdiction to act as such, is acting in bad faith in the expropriation process, or if the expropriation itself otherwise fails to meet provisions of the Act. The rules and strategies for such applications fall within the domain of administrative law and represent an entirely distinct field of legal theory. For the scope of this article, it will suffice to say that owners should consult with legal counsel about the possibility that some conduct by the EA may give rise to additional grounds for a court challenge to the expropriation.
One final challenge may be brought where an EA abandons the expropriated property after taking possession. Such circumstances make it very difficult to imagine that the expropriation was necessary in the first place, and the expropriated owner may pursue action to regain title to the property. Alternatively, in a case where the EA only took a partial interest in the property, the expropriated owner may seek to force the EA to purchase for compensation the remaining property interest.
Understand that any approach will invariably bring its own advantages and disadvantages. A HoN, for example, may truly be an effective forum in which to voice your concerns and challenge the legitimacy of expropriation, but it may also come with limited odds of success and limited recoverability of the associated legal costs.
Weighing the pros and cons of all the options available to you is best done by, or at least in consultation with, a lawyer with a nuanced view of how each option is likely to play out. Consider reaching out to one of our expropriation lawyers for a consultation.