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Expropriation Lawyer in Toronto

Goldstein Law Firm specializes in expropriation law.  We have extensive experience navigating the Expropriations Act in Ontario for property owner and business owner clients.  You may first become aware of an expropriation when you are provided with a Notice of Application of Intention to Expropriate by your local municipality. It is imperative to contact experienced legal counsel at this early stage to ensure your rights are preserved with respect to the expropriation.

Expropriations can involve permanent purchases of fee simple interests in land (full taking or partial taking of land). In other words, the government will involuntarily purchase your property, and you, as property or business owner, are obliged to accept this decision, subject to the right to appoint an inquiry officer to investigate whether the expropriation is sound, fair, and reasonably necessary in light of the public purpose.  The public purpose is typically an infrastructure project that the government is implementing for the public benefit, with detriment to those expropriated property owners.

The permanent taking of an entire property is the extreme end of the expropriation scale. On the other less intrusive end of the scale, the government may require permanent or temporary easements (also defined as rights-of-way) on your property or business, which are typically required to accommodate construction work. For example, where a road is widened and/or utility lines or other services are moved, construction workers may require access to private property to complete the work. Sometimes this access may be permanent (i.e., where hydro poles are installed on previously private property to accommodate a widened road or new bike lanes) or temporary (i.e., where access is required for construction work but not the use or operation of the infrastructure).

When entering into easement agreements with the authorities, particular attention should be paid to certain terms to ensure the property and business owner is protected. Some of the key terms include but are certainly not limited to the following:

  • Term: In the event of a temporary easement, how long do the authorities expect to require access to the property, and if the access requirements extend beyond the initial timeline, how is compensation to be determined?
  • Injurious affection damages:  Where construction works occur on or around a property, the owners may not only be entitled to compensation for the granting of a fee simple interest in the land or a permanent or temporary easement, they may also be entitled to compensation for the nuisance and disruption caused by the construction works (i.e., if access is limited to parking by construction barricades, or if noise, dust, and debris causes a material business decline).
  • Relocation expenses: if the entirety of your property or business is required by the authorities, there is an obligation under the Expropriations Act to pay for your reasonable relocation expenses to a comparable property.  Determining the appropriate amount of relocation expenses payable can often be subject to dispute; as such, it is advisable to employ experienced expropriation legal counsel, business valuators, and land appraisers, as appropriate in the circumstances.

What is Expropriation?

As the government implements various infrastructure projects across Ontario, there is a growing need to purchase private property from land and business owners in order to accommodate public construction work.  The government has the authority to take land without the consent of the owner using the powers set out in the Expropriations Act in Ontario. When a government purchases a property from private owners without their consent, this is referred to as an expropriation.

At Goldstein Law, we represent property owners, tenants, and businesses to obtain fair compensation for lands they are losing as a result of expropriation and be compensated for any other damages they have suffered. When a statutory authority takes your land through an expropriation, you are entitled to receive compensation equal to the fair market value of the property taken.

The Government Pays Your Legal Fees

Under S.32(1) of the Expropriations Act, the authorities are required to reimburse claimants for all reasonable legal and professional fees incurred in order to obtain compensation resulting from the expropriation of lands.  In other words, if your property or business is expropriated, your out-of-pocket costs for legal and professional services should be zero.  Your success is our success. We Represent Expropriated Property Owners Without Charge to the Client.

The Owner that is subject to an expropriation should be made “whole” by the government. As such, an expropriated party is entitled to the market value of the lands, interest thereon, injurious affection damages, and any business or disturbance damages that are a natural or reasonable consequence of the expropriation.  In addition, the Act provides for the government to reimburse all reasonable professional and appraisal fees incurred by the expropriated party.

Examples of Our Representation in Expropriation Matters

We have advised clients on various expropriation-related matters, including but not limited to the following projects:

  • Eglinton Crosstown Light Rail Transit (LRT) Project – recovered compensation for business and property owners that suffered injurious affection related to the LRT construction interference;
  • Highway 400 Road Widening – advised clients in claims for property damages arising out of the construction;
  • Finch Avenue West Light Rail Transit (LRT) – advised business and property owners on direct takings or expropriations of partial interests in their lands;
  • York Viva Rapid Transit Expansion – advised business owners on the loss of income related to the construction and negotiated with the authorities related to the purchase of temporary easements;
  • Oakville Road Widening – advised clients on the value of permanent easements and negotiated a settlement with the authorities related to a partial expropriation;
  • Rutherford Road Widening – advised counsel on partial expropriations and injurious affection as it relates to a condominium corporation in the vicinity to the construction.

What is the Process of Expropriation? 

Before an authority outright expropriates a property, they will attempt a negotiation with the property or business owner in order to reach a settlement without the need to advance through the expropriations process. The Expropriations Act in Ontario is the legislation that governs the process of expropriations in Ontario.  If a negotiated resolution cannot be reached between the authorities and the property owner, the expropriating authority will have to obtain approval from its local municipal council in order to carry out the expropriation.

A Notice of Intention for Approval to Expropriate will then be served on the property owner.  The owner whose land is subject to expropriation will then have up to thirty (30) days to request an inquiry as to whether the expropriation of their property is necessary given the circumstances. Once the Hearing Officer conducts an inquiry into the pending expropriation, the authorities will then choose whether to modify their project or proceed with the expropriation.

Once the expropriation is approved by the local council, a plan of expropriation is then registered in the land registry office of the particular region. The expropriation authority will then serve on the property owners the following:

-Notice of Expropriation;
-Notice of Possession; and
-Notice of Election.

If you have been served with the any of the above-noted documents, it is imperative that you contact an experience expropriation lawyer in Ontario today.  For more information on these notices or otherwise, please contact our law firm or review our expropriation law blog posts.

What is Injurious Affection?

If, on the other hand, the authorities do not take your land, but their public works substantially interfere with your use and enjoyment of your property, you may be entitled to compensation through an injurious affection claim under the Expropriations Act in Ontario.

Injurious affection claims are premised on the law of nuisance in Ontario. In determining whether there has been a nuisance, the Court must assess whether there has been a substantial and unreasonable interference with your property. The following factors are assessed:

  • The severity of interference;
  • The character of the neighborhood;
  • The utility of the defendant’s conduct;
  • The sensitivity of the plaintiff; and
  • The duration of the interference. 

The Local Planning Appeals Tribunal (LPAT), formerly the Ontario Municipal Board (OMB). has the exclusive jurisdiction for expropriations claims in Ontario. Though an emerging area of law, the LPAT has granted several awards to affected landowners and businesses for injurious affection expropriation claims.[1]

As discussed, your land does not have to actually be taken in order to have an expropriation claim.  There is, however, a balancing of public and private interests.

Please call us now if your business is or has been substantially impeded by a construction work initiated by the authorities. Please recognize that it is imperative to put the authorities on notice that you are experiencing damages as a result of their works. Contact us today to discuss the expropriation claims process.

[1] For an example of a successful injurious affection claim by a business owner negatively impacted by statutory construction work, click here.

[2] View a video and article on struggling business owners on Eglinton Ave: Struggling business owners consider legal action against Metrolinx