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Section 22 Notice of Injurious Affection Under the Expropriations Act

Section 22 of the Expropriations Act imposes a critical limitation period – Claimants who have suffered losses as a result of a partial taking of their property or whom have suffered injurious affection to their property or business where no land has been taken, must provide the statutory authority with written notice of injurious affection (“IA”) within one year after the damage was sustained or after it became known. If not, compensation claims for injurious affection are “forever barred.”

A plain reading of s. 22 outlines three key points: (1) notice must be given in writing; (2) notice must be given one year after the damage was sustained; and (3) if notice was not given within one year after the damage was sustained, notice may also be provided after damages became “known” to the person.

On what date does a Claimant know, or ought to have known, they have a claim for IA? The case law has been generous to Claimants who have
valid and unvexatious compensation claims for IA, and this is appropriate. In Willies Car & Van Wash Ltd. v. Simcoe (County) 2015, L.C.R. 39, OMB (upheld on appeal), the OMB noted that it is not reasonable to delay giving notice until after the full amount of the loss is calculated. Instead,
the Board found that s. 22 notice was due one year after the Claimant knew that a road closure was the alleged cause of its income losses – the Board held that notice was due, at the latest, 12 months after a road closure was
finalized and losses began to mount. The Board also noted that “the Claimant is also required to act diligently to inform itself of any loss giving rise to a claim.”

Where construction works are ongoing (i.e., with the Eglinton Crosstown) or other large scale infrastructure projects, injurious affection can theoretically be happening on a daily basis to the business or property; accordingly, a rolling limitation period applies, whereby damages can be claimed for one-year prior to the date the notice was issued. Where the injurious affection ceases, the section 22 notice has to be issued no more than one-year following that date.

If your property has been expropriated in Ontario or you have suffered an unreasonable interference from government construction works, it is important to protect all of your interest (i.e., the market value of the property expropriated, any damages for injurious affection, personal and business losses, and disturbance damages). These categories of damages are expressly stipulated in the Expropriations Act and have specific interpretations that have been applied by the Courts in Ontario. A qualified expropriation lawyer will assist the claimant in understanding the totality of their claims for damages under the Act.

Initial Steps in the Expropriation Process

Pre-Expropriation Procedures

Prior to commencing the expropriation process, the authorities may approach the owner directly in an attempt to negotiate a settlement without initiating potentially time-consuming expropriation proceedings. In which case, the authorities will approach the property owner with an appraisal report in an attempt to negotiate a settlement. If the property owner and authorities cannot reach an amicable resolution, the next step is for the expropriating authority to publish a notice of application for approval to expropriate lands.

Notice of Application for Approval to Expropriate Lands

Upon commencing an application for approval to expropriate lands to an approving authority (i.e., local municipal council), the town or region must publish the Notice of Application for Approval to Expropriate Lands in a public domain (i.e., a newspaper with general circulation in the relevant region where the expropriation will be undertaken).

Any owner which is given notice of the expropriation has the right to request a Hearing of Necessity with an inquiry officer to conduct an assessment into whether the expropriation is fair and necessary in light of the objectives of the public work.  The request for a Hearing of Necessity must be made to the authorities directly in writing within 30 days of receipt of the notice of approval to expropriate lands.

If no Hearing of Necessity is requested, the local approving authority will determine if the expropriation can proceed.  If approval fo the application is granted by the “approving authority” (as defined by the Expropriations Act), the authorities have 90 days to register a Plan of Expropriation on the title to the lands it requires. Once the Plan of Expropriation is registered on title, ownership vests in the authorities (although possession of the lands will often remain with the property owner).  There are a number of technical additional steps that occur following the registration of the expropriation plan, which steps are governed by the provisions of the Expropriations Act in Ontario.

Given the breadth of infrastructure upgrading and improvements across the Province of Ontario, various regions are initiating the expropriation process; as such, we have provided examples of the published notices of approval to expropriate lands from various authorities, as listed below:

Region of Waterloo

Town of Oakville

Town of Collingwood

City of Kingston

Dealing with a Pending Expropriation

If you are a property or business owner that has been served a notice of application for approval to expropriate lands, an experience expropriation lawyer will help you navigate the technical complexities and timelines as prescribed by the Expropriations Act.  For more information on expropriations, visit our main page here or give us a call at 647-838-6740.

Expropriation in Ontario

As we have discussed in our expropriation law blog posts, we represent property owners and business owners in claims against government authorities when land is involuntarily purchased for a public purpose. The Municipal Act 2001 S.O. 2001, c. 25, in Ontario, provides that the power of a Municipality to acquire land under the Municipal Act, or any other Act, includes the power to expropriate land in accordance with the Expropriations Act.

In order to authorize an expropriation of land, the municipality must obtain the consent of the governing council to carry out the property acquisition. Once approval is obtained from municipal council to proceed with the purchase of land, a Notice of Application for Approval to Expropriate Land is delivered to the property owner, following which a series of steps is taken by the authorities, typically including but not limited to as follows:

a) a Plan of Expropriation be obtained and registered on title to the Lands;

b) the Notice of Expropriation, Notice of Possession and Notice of Election be served upon the owners of the Lands;

c) an appraisal report for expropriation purposes be obtained to establish the market value of the Lands;

d) the owners of the Lands be served with an offer in accordance with Section 25 of the Expropriations Act;

e) payment of compensation offered pursuant to Section 25 of the Expropriations Act, be made upon acceptance by the owners of the Lands;

f) all necessary steps required to be taken to obtain possession of the expropriated Lands.

If the property owner does not accept the section 25 offer of compensation in full and final satisfaction of their rights in the property, the owner may commence further legal action, engage their own property appraiser, and proceed with negotiation at the Board of Negotiation or an arbitration process through the Local Planning Appeals Tribunal (LPAT) for a determination of the proceeds of expropriation.

Offers of Compensation – Approving Expropriations

An expropriating authority is required to obtain the approval of the local council or “approving authority” in order to carry out an expropriation. An example of such approval is contained here

In the link, attached, permission is sought from the City of Toronto to expropriate and acquire temporary construction easements to facilitate the construction of the Toronto Spadina Subway Extension Project. As we have discussed here, temporary easements are strips of land contained in a property owners parcel, which is required by the authorities for an indicated period of time to carry out construction work. The authorities do not seek to acquire permanent interests in such property; as when the construction work is completed, access will no longer be required to such land, and full ownership reverts back to the property owner, with no easement or otherwise attached thereto.

The expropriating authority will always require that the property owner signs a Full and Final Release in exchange for the payment of compensation for the expropriation. It is imperative that the property owner carefully reviews the terms of the Release to ensure that future claims are not barred should they arise. For instance, in the above-referenced case related to a temporary construction easement, if the works take longer than initially anticipated, the authorities may need to extend the duration of the easement, which will result in additional compensation for the property owner. However, if the Release is drafted in a way that precludes the property owner from obtaining additional compensation for an easement extension, then substantial funds could be lost.

Accordingly, and given that expropriating authorities are required to reimburse reasonable legal and professional fees under the Expropriations Act, it is advisable to consult with an expropriation lawyer before signing any agreement for compensation.

What is Expropriation?

Government authorities such as municipalities, school boards, and provincial and federal governments undertake projects which require them to obtain land from private property owners. In many cases, the authorities only require a small portion of the private property owners’ land for an easement or for related purposes such as utilities, although, in certain instances, entire properties are required (i.e., full vs. partial expropriation).

The authorities will attempt to purchase the land required from a project through a negotiated process with the affected property owners. The first step in the negotiation process is a hearing with the Board of Negotiation at the Local Planning Appeals Tribunal (formerly Ontario Municipal Board). Absent successful negotiations, the authorities may use the expropriation process to ensure that the land is obtained in a specific timeline to suit their project needs. Simply, an expropriation is a transfer of lands or an easement to an authority for reasonable compensation, including payment for the fair market value of the transferred lands, without the property owners consent.

In Ontario, an expropriation by an authority must follow the process set out in the Ontario Expropriations Act to ensure that the rights of the property owners are protected.

Sometimes, authorities will seek a negotiated resolution while the expropriation process is underway. This approach is necessary to ensure that the lands are in the authorities possession in the necessary timeframe; however, it can also save costs of both sides. Expropriation proceedings can be discontinued and the land transferred to the authorities in exchange for the payment of the negotiated compensation.

If your land has been expropriated or the authorities require an easement on your property to accommodate a public work, call the expropriation lawyer at Goldstein Law Firm to ensure you maximize the compensation that you deserve in conjunction with an expropriation in Ontario.

Legal Fees in Expropriation Law Matters

The Expropriations Act in Ontario allows for claimants to be reimbursed for any legal fees incurred through the expropriation process, as long as they have been awarded 85.0% or more of the compensation that was originally offered by the expropriating authorities. The Expropriations Act will cover reasonable legal, appraisal, and professional fees that are associated with the expropriation.

In our expropriation law practice, clients can retain our expert expropriation law counsel without paying any fees out-of-pocket. We also have a team of advisors, including business valuators, land use planners, and appraisers, that may necessarily be engaged through the expropriation process, whose reasonable fees will be covered by the expropriating authorities. Accordingly, if your property is in the midst of an expropriation, it is best to consult with a qualifying expropriations lawyer as the Expropriations Act protects clients against the payment of substantial out-of-pocket legal and professional fees.

Easement Expropriations – Compensation

As we have mentioned here and here, the act of expropriation is a powerful mechanism available to public authorities to involuntarily purchase a property owners land. In many cases, the authorities will not require the entire building or land in order to carry out its public purpose. Rather, the majority of expropriations are partial expropriations, whereby the authorities seek to purchase a portion of land that resides in a property owners parcel.  The taking of easements is very common practice among expropriating authorities and it is imperative that property owners are sensitive to the amount of compensation that is being offered in exchange for the easement.

What is an Easement?

An easement is a right granted to a party to use a property owners land for a specific purpose. In the context of expropriation law, easements may be temporary or permanent. For instance, we have represented property and business owners in the York Region who have been served with Notices of Expropriation for both temporary limited interests (i.e., temporary easements) and permanent easements related to the York Region Viva Rapid Transit Corridor on Yonge Street from Sawmill Drive to Davis Drive in Newmarket.

The temporary limited easements typically related to authorities need to use various land that abuts the main roadway for construction purposes. Entries to parking lots and other laneways are often required by the contractors to store heavy construction equipment or as access points to enter and exit construction staging zones. Property owners have the obligation to accommodate the construction activities subject to their right to obtain compensation for the same.  Often, the easement agreements will be entered into for a period of time (i.e., one or two years); and, in exchange for the compensation obtained, the expropriating authority will be released from any claims for the indicated period.

In the event the construction is not finished within the estimated timeline, a common occurrence in the context of public construction works, the property owner will have the opportunity to negotiate further compensation. It is critical that the expropriated property owner negotiates an agreement for compensation that preserves their rights to additional compensation should the construction continue to interfere with their business beyond a projected date.  To this end, it is advisable to contact an expropriation lawyer to discuss the provisions around offers of compensation and negotiating expropriation-related agreements.

Goldstein Law Firm focuses on expropriation law and has experience with expropriation files related to various public construction projects, including but not limited to:

-Eglinton Crosstown LRT;
-York Region Viva Next Rapid Transit;
-Town of Oakville, Road Widening Projects;
-Finch West LRT Expansion.

Contact our expropriation law firm today for a free consultation!

TTC Modernization – Expropriations in Toronto

The Toronto Transit Commission (“TTC”) is expected to outgrow its current subway storage and maintenance capacity. As such, the TTC needs to pursue and acquire (i.e., expropriate) properties for additional capacity.  Such acquisition is ongoing, specifically with the Etobicoke region, as the TTC has identified approximately 73 acres of land to expropriate.

City Council has provided authority under the Expropriations Act for the same, and Notices of Application for Approval to Expropriate have been served on registered property owners. A Hearing of Inquiry was held in February 2018, and it was accepted that the TTC’s site is appropriate in size and location. Therefore, the expropriation was found to be fair, sound and reasonably necessary.

Ongoing negotiations with the owner have yet to result in the acquisition of the properties, expropriations will be required to meet the project timelines.  If you are a property or business owner that is impacted by a transit project, whether the TTC Modernization projects or any of the LRT projects around Ontario, it would be advisable to consult with an expropriation lawyer in Ontario today.