Toronto Expropriation Lawyers Advising Property Owners Affected by Expropriation

All expropriations in Ontario follow a process governed by the Expropriations Act. For property owners who find themselves at any stage of this process, it is vital to obtain legal advice and guidance from a knowledgeable expropriations lawyer as soon as possible, even if you think it might be too late.

At Baker & Company, our expropriation lawyers have more than 30 years of experience representing parties affected by expropriation. We only represent property owners, business owners, and others affected by expropriation – never the government or other expropriating body. We are almost always able to secure our clients more money than what was originally offered to them by the government and can help our clients even after the expropriation process has already begun.

Pre-Expropriation Procedures 

In general, before the expropriation process can begin, the expropriating authority must engage in a thorough study under the Environmental Assessment Act. This is a prolonged process involving many moving parts and can take months (or sometimes even years) to complete.

Part of this process involves:

• Identifying the need and justification for the project;
• Defining the extent of land required to complete the project;
• Identifying alternatives that could achieve the same end result; and
• A public consultation.

Often, the first time that a landowner becomes aware that their property may be required for a new public project such as a new highway or road widening is when they receive notice of the public consultation process.

Landowners who find themselves in this situation can use this early stage of the potential expropriation process to retain appraisers and other experts to influence decisions made and minimize the potential impact to their property.

At this stage, a property owner may also sell a portion of their property to the expropriating authority, even before the need for expropriation arises, in exchange for an advance payment, while maintaining their right to seek full compensation for any losses or damages resulting from the eventual expropriation. This is known as a “Section 30 Agreement” based on the relevant section of the Expropriations Act which governs the procedure.

It is highly recommended for property owners to consult with a knowledgeable and experienced expropriations lawyer during the pre-expropriation stage to fully understand their rights, assess their options, and decide how best to move forward.

Notice of Application for Approval to Expropriate 

The first step in the formal expropriation process is for the expropriating authority to serve a Notice of Application for Approval to Expropriate Land on the registered owner of the relevant property.

Once an owner is served with this Notice, they have 30 days to request what is known as a “hearing of necessity” and at the hearing, the expropriating authority must establish that the proposed expropriation is “fair, sound, and reasonably necessary in the achievement of the objectives of the expropriating authority”. The hearing determines whether the proposed expropriation is “reasonably defensible” given the circumstances.

Where no hearing of necessity is requested, or if a hearing takes place and the expropriating authority receives a written recommendation from the inquiry officer, the approving authority (generally the Minister) will then approve (or not approve) the proposed expropriation, and where there are recommendations made by an officer those will be taken into account. The approving authority must give written reasons for its decision and must serve the decision on all parties within 90 days after the date on which the approving authority receives the inquiry officer’s report.

With careful legal advice, the hearing of necessity can be utilized for the strategic benefit of the property owner and to reduce the impact of a proposed expropriation. A skilled and experienced expropriations lawyer can explain how best to proceed at this stage of the process.

Registration 

After an expropriation is approved, the expropriating authority has 90 days to register a Plan of Expropriation that is signed by a land surveyor in the Registry Office as well as the expropriating authority.

Once a Plan of Expropriation is registered, legal title to the land expropriated by the Plan vests with the expropriating authority (i.e. the property owner may remain in possession of the land, but he/she is no longer the legal owner of it).

The date for registration of the Plan also triggers several time requirements for the expropriating authority to take additional steps to complete the expropriation. For instance, the expropriating authority has 30 days in to serve a Notice of Expropriation and Election on the property owner.

This Notice notifies the owner that their land has been expropriated and legal title has transferred to the expropriating authority. It provides that owner with the change to elect the “valuation date” for the purposes of determining how much compensation he or she is owed. An owner has 30 days to indicate which date they prefer, otherwise, they are deemed to have elected to have the compensation assessed as of the date of the Plan’s registration.

A Notice of Possession is generally delivered at the same time as the Notice of Expropriation and Election. The Notice of Possession must specify a date for possession that is at least 90 days after the date of the service of that Notice.

Once the Notice of Expropriation has been served, the expropriating authority will likely move quickly to finish an appraisal report to be delivered to the property owner along with a statutory offer of compensation under the Expropriations Act. The Act also permits the expropriating authority to enter onto the property to assess it for appraisal, including the ability to conduct environmental testing. Where the property owner refuses entry onto the land, the expropriating authority has the power to apply to the Local Planning Appeal Tribunal (formerly the Ontario Municipal Board) for an Order granting them access.

There are several important strategic decisions for property owners to make at this stage of the process. They should not do so without fully understanding the impact of every option available to them and should not make any final decisions without consulting with an expropriations lawyer who can clarify all relevant avenues available at this stage.

Statutory Offer of Compensation 

Unless an earlier agreement with respect to compensation has been made with an owner, an expropriating authority must serve the registered owner with an offer of compensation under section 25 of the Expropriations Act (i.e. the statutory offer of compensation). This offer must be made within 90 days after the registration of the Plan of Expropriation and prior to taking possession of the relevant land.

The Expropriations Act requires the expropriating authority to base its statutory offer of compensation on an appraisal report that appraises the market value of the lands being taken and considers damages for injurious affection. The appraisal report must be included with the statutory offer.

Depending on what option the property owner chooses on receipt of the statutory offer of compensation, they may eliminate their rights to claim additional compensation. Property owners who receive a statutory offer of compensation should consult with an expropriations lawyer before making any final decisions.

Section 22 Notice 

Property owners have one year after the damage was sustained (i.e. after they were affected by an expropriation) or after the expropriation became known to the property owner to notify the expropriating authority, in writing, of a claim for injurious affection. Where this limitation period is not complied with, the Expropriations Act bars any further claims for injurious affection. Unsurprisingly, legal disputes often arise over this timeline.

It is highly advisable to consult with an expropriations lawyer as early in the expropriations process as possible and to provide written notice of a claim for injurious affection as soon as is it discovered that there will be an expropriation. The exact details of the damages suffered do not need to be provided at the time of giving notice. It is sufficient for notice to be given only so that the limitation period is preserved, and this strict deadline is not missed.

Compensation Claims under the Expropriations Act 

Section 13(2) of the Expropriations Act outlines four general categories of compensation to which a property owner affected by expropriation is entitled. These include:

• Market value of the land;
• Damages related to disturbance;
• Damages for injurious affection; and
• Damages for any special difficulties in relocation.

Due to the way in which interest on damages is calculated, and depending on which category damages are deemed to fall into, proper classification of the damages is critical.

Additional rights to compensation are also outlined in the Expropriations Act and should not be overlooked.

Property owners affected by an expropriation should consult with an expropriations lawyer as soon as possible in order to understand what compensation options are available to them, and what the optimal option is in their circumstances.

Claims Before the Local Planning Appeal Tribunal (LPAT) 

Expropriation compensation claims are adjudicated before the Local Planning Appeal Tribunal (formerly the Ontario Municipal Board).

Before the LPAT can address an expropriation compensation matter, the expropriating authority and the owner must have gone through a proceeding before the Board of Negotiation (a specialized tribunal intended to provide an informal forum for parties to mediate or resolve their claims) or have waived the requirement for such a proceeding.

LPAT proceedings have their own specialized rules of procedure that differ from court proceedings, which must be complied with. Legal representation throughout this process is highly recommended.

Legal Costs & Interest 

Costs 

Many landowners may not realize that the Expropriations Act contains specific provisions intended to reimburse landowners for the reasonable legal and other costs associated with determining the amount they are owed following an expropriation.

Section 32(1) of the Expropriations Act provides that, where the amount to which an owner is entitled to following expropriation is determined to be 85% or more of the amount offered by the statutory authority, the Board will order the relevant authority to pay the reasonable legal and other costs incurred by the owner for the purposes of determining the amount payable.

Even where an owner is not awarded at least 85% of the amount offered by the statutory authority, s. 32(2) of the Expropriations Act leaves it to the board’s discretion to order the payment of an owner’s reasonable legal and other costs.

Interest 

The Expropriations Act states that the owner of expropriated lands is entitled to be paid interest on:

• The portion of the market value of their interest in the land; and
• The portion of any allowance for injurious affection to which they are entitled to.

Interest is not awarded on disturbance damages.

Interest is calculated at 6% annually from the date the owner stops living on the land or making productive use of the land. It can be awarded from a date that predates the actual registration of an expropriation plan or the surrender of possession.

Contact the Toronto Expropriation Lawyers at Baker & Company for Guidance on Expropriation Matters 

If your property or land is going to be expropriated, contact the highly experienced Toronto expropriation lawyers at Baker & Company. For more than 30 years we have advised property and landowners and ensured that they were being adequately compensated following an expropriation. Call us at 416-777-0100 or contact us online for a free consultation.