The Ins and Outs of Ontario Expropriations: A Procedural Overview
Understanding Ontario Expropriations
Before diving into the nuance of the expropriation process, we ought to establish a solid foundational understanding of what is meant by the term. Essentially, expropriation describes the conceptual basis by which the government may take ownership of some real property (either entirely or partially) that is already validly owned by a private entity. Though the private property owner may have no desire to relinquish any amount of their ownership stake, expropriation nevertheless provides the government with the legitimate means of forcing that private party to do precisely that.
While the entitlement to expropriate represents a substantial empowerment, it does come with constraints. For example, the government may not expropriate private property with arbitrary abandon; rather, such seizures must only occur when they are a necessary condition for the advancement of some government objective. Common examples of such projects often include infrastructure developments, like LRT lines or hydro stations, that require private residences obstructing the development of such to be vacated and demolished.
Another constraint is imposed in the form of the requirement for just compensation. While an expropriating authority may indeed validly take a private entity’s property, they are also required by law to compensate the expropriated owner for the value of the ownership interest that has been taken. In simple terms, the property owner should be put in the same financial position they would be in had they sold their ownership interest on the open market and received a fair market price (without considering the impact of the development on the property price). Other factors may give rise to additional compensation beyond the simple market price, such as damages for impacts on a business due to the expropriation.
The contentious nature of taking someone’s property without their consent inevitably makes many expropriations heavily contested matters. Adding the requirements for compensation and sufficient justification for the expropriation means that there are often fertile legal grounds for disgruntled expropriation victims to pursue legal challenges against the expropriation. In order to avoid the chaos that such adversarial proceedings might otherwise have, expropriation proceedings are heavily structured and organized, with statutorily imposed milestones and corresponding deadlines. Understanding these processes is a critical ingredient for property owners facing expropriation to adequately protect their rights throughout.
The Expropriation Process
In Ontario, most expropriations are governed by the Expropriations Act (the “Act”). Because Ontario is a common law jurisdiction, the outcomes of court cases on expropriations may also set legally forceful precedents for future expropriation matters that other Ontario courts must observe or consider. However, because many expropriation matters are decided before tribunals and other administrative bodies whose decisions are not binding, the case law on expropriations is not as robust as in other areas of law, which can lend an element of unpredictability to expropriation conflicts.
Identifying the parties
An expropriation’s earliest stages commence when an Expropriating Authority (“EA”) identifies a property they wish to take. An EA can be any organization or body that is conferred the authority to expropriate by statute. In other words, it is difficult to predict which organization might seek to expropriate property, since the law may give that power to whichever entities it sees fit. Typically, though, an EA will be a municipality or a public body with some responsibility for an area of public infrastructure, like Ontario Hydro or various provincial transit services.
Though EAs are granted the authority to expropriate, they are not the only entity empowered in this context. The ultimate authority (subject to further appeals) regarding the necessity of expropriations is statutorily granted to the Approving Authority (“AA”), the identity of which, much like that of the EA, varies. It is not uncommon for a single agency or organization to act as both the EA and AA in the very same expropriation matter, which some critics may point to as a potential conflict of interest.
While the AA makes the final call about the necessity of contested expropriations, an Inquiry Officer (“IO”) is appointed to administer and oversee disputes over necessity (referred to formally as Hearings of necessity (“HoN”)). The IO will conduct the hearing and receive submissions from stakeholders as to whether the expropriation in question truly is necessary for whichever project is given as justification. The IO will then author a report with their findings, which the AA must consult before reaching a decision. The AA, however, ultimately retains complete discretion as to the necessity and approval of an expropriation, regardless of what the IO recommends.
In the beginning
Before a formal expropriation process even begins, a property owner may first hear of the intention to expropriate their property through various public consultations or environmental assessments occurring in respect of the relevant project. These processes are not actually legislated in the Act and tend to occur incidentally to the expropriation, as a result of other legislation, like the Impact Assessment Act. Nevertheless, a prudent property owner may take these proceedings as signs of an impending expropriation and may choose to begin preparing for the first formal steps of the expropriation process which are likely to follow.
It is not uncommon for property owners at this stage to receive preliminary and informal purchase offers from the EA. After all, most parties would prefer to avoid the formality and contention of the statutory expropriation process if a consensual purchase agreement can be reached. However, many property owners are counseled against accepting such preliminary offers; EAs may initially offer less than the potential entitlement to a compensation an owner might otherwise receive, and unsuspecting owners may feel pressured into accepting such unfavorable terms. The best decision in any specific case is for a property owner and their lawyer to consider together.
Once the EA has solidified its intention to attempt to expropriate a property, it must apply to the relevant AA for approval to do so. The owner of the targeted property is entitled to receive notice of the application for expropriation in writing, and the notice must also be published in a local newspaper for no less than three consecutive weeks. Receiving notice of the EA’s intent to expropriate triggers a statutory timeline within which the property owner has thirty days to choose whether they wish to request an HoN or not; failing to exercise this choice within the timeline will be taken as a forfeiture of the right to make such a request and no hearing will be granted.
Contesting the necessity of expropriation
HoNs do not occur in every case, rather only where they are requested by the owner. The premise of these proceedings is that not every expropriation is legally justified in terms of its necessity for the completion of the underlying project, and property owners ought, therefore, to be able to challenge attempted expropriations that they claim fail to meet this standard. Note, however, that the necessity of the underlying project is never at issue in these proceedings.
For example, say a property owner wishes to challenge the expropriation of their house in order to make way for a new LRT line. The property owner may validly argue that the LRT line is not impeded by the presence of their home and that the expropriation is thus not warranted. They may not, however, claim that the creation of a new LRT line is unnecessary. The IO and AA are empowered only to assess whether an expropriation is a necessary component of achieving a governmental goal, not whether that goal itself is sound.
At the conclusion of the HoN, the IO will report their findings as to the necessity of the expropriation. They will also include a corresponding recommendation as to what adjustments, if any, should be made to the expropriation plan. They may recommend an increase or decrease in the amount of property to be expropriated (recall that not every expropriation claims the entire ownership stake) or recommend no changes at all. In most cases, it is unlikely that the IO will recommend scrapping the expropriation altogether. And, ultimately, as discussed above, the final say regarding the expropriation falls to the AA after considering the IO’s report. If the AA is satisfied with the necessity of the expropriation, they will issue the EA a Certificate of Approval, allowing them to proceed to expropriate.
Other procedural milestones
After the expropriation has been approved, the expropriation is set to proceed, with only the details of timing and compensation to be ironed out. The first milestone after approval of the expropriation occurs when the EA registers a Plan of Expropriation (“PoE”) no more than three months thereafter. This step solidifies the expropriation and causes the title to the property to vest in the EA, though this does not mean the (ex-)owner is required to vacate the property at that time.
The property owner is entitled to notice of PoE registration (Notice of Expropriation, or “NoEx”) within thirty days. In practice, the EA will usually serve a Notice of Election (“NoEl”) and Notice of Possession (“NoP”) along with NoEx. NoP notifies the owner of the date on which the EA will take possession of the property, and NoEl allows the owner to choose the valuation date or the date on which the market value of the property is to be assessed for compensation purposes.
At this point in the process, the main point of contention remaining to be settled is the amount of compensation to which the owner is entitled. Unsurprisingly, this can be the point in the process which attracts the most intense conflict, since the value of a property is complex and often includes the owner’s own subjective attachments to the property. Obtaining the input of professional appraisers and other objective specialists can be instrumental in presenting a persuasive account of an owner’s financial entitlements.
The first salvo in this often-contested process comes with the EA’s initial offer of compensation, which they must present within three months of PoE registration. As with early offers, owners should be wary of accepting initial offers uncritically, and should at least understand the implications of doing so. Accepting an offer at this stage can terminate the owner’s right to pursue additional compensation. They may, however, accept the offer without prejudice, enabling them to pursue some forms of additional compensation under other categories.
The owner may also wish to reject the offer entirely or entertain a series of negotiations with a view of reaching a middle-ground figure that satisfies both parties. Where such an agreement is not reached through informal negotiation, parties may attend formal, mediated negotiations before the Ontario Land Tribunal (“OLT”). Where agreement is still not attained as to compensation following mediation, the matter will be finally settled in arbitration proceedings before the OLT.
Expropriation is a complex and often emotionally taxing process for property owners. EAs frequently have the benefit of substantial resources and experience with prior expropriations, which they can leverage against property owners who may still be coming up to speed on the concept of expropriation. This often leads owners to make hasty decisions that fail to fully capture their real entitlement to compensation, or even to retain some or all of their ownership interest in their property.
Being informed about the expropriation process and understanding your legal rights are paramount to receiving a fair outcome in the expropriation of your property. Please keep in mind that the account of the expropriation process given in this article is meant only as a high-level overview for general informational purposes and should not form the basis for any potentially significant decisions. Consulting with an experienced and knowledgeable expropriation lawyer can even the playing field between property owners and EAs. We encourage you to reach out to one of our highly competent and helpful expropriation lawyers today.