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PUBLICATIONS
Expropriation of Land
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by William R. Hunter
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What is Expropriation?
When a local or the Provincial government in Ontario requires land for roads, facilities or other governmental purposes then, pursuant to the provisions of the Expropriations Act, they are entitled to expropriate, or take, the interest of a person in lands without the consent of that person. The Act allows for the expropriation of private lands in exchange for the payment of reasonable compensation to the landowner. Compensation may include, not just the value of the lands expropriated, but, depending upon the circumstances, could include disturbance damages, business damages and damages to adjacent land of the expropriated person which damages are called injurious affection.
Injurious Affection
An example of injurious affection would be where a road is constructed through a farmer's lands making the two remaining parcels difficult and uneconomical to farm. Not only is the farmer entitled to be paid for the value of the lands expropriated but, he or she is also entitled to damages sustained because the remainder of the farmer's lands have been rendered unproductive due to the expropriation and the works constructed upon the expropriated lands.
Another example of injurious affection would be where an expropriation occurs of part of a homeowner's property abutting a road for the purpose of widening the road. The effect of this could be to bring the traffic flow closer to the home causing an increase in traffic noises and fumes thereby impacting negatively upon the homeowner's use and enjoyment of the remaining land.
The Process
Someone who feels aggrieved with an expropriation has various rights under the Expropriations Act to challenge the expropriation and obtain fair compensation. If the matter of compensation cannot be settled between the parties, the expropriated person has the right to have the Ontario Municipal Board hear detailed evidence respecting the expropriation and arrive at a just determination of compensation. At the hearing, which is conducted much like a trial before a judge, appraisal and other expert evidence is usually presented by the parties in addition to the evidence of the expropriated person. At the conclusion of the hearing, the parties present their factual and legal arguments . The Ontario Municipal Board will then provide a decision within a few weeks after considering the case. A clear understanding of the law of expropriations is required in order to be successful
Costs
One unique feature of expropriations are the provisions relating to costs. In most cases, the expropriating authority will make an offer of settlement. The expropriated person may elect to accept the money offered as partial compensation yet continue to attempt to obtain increased compensation. If the expropriated person obtains at least 85% of the amount offered by the expropriating authority, the expropriated person is entitled to receive all of his or her legal and other reasonable legal, appraisal and other costs incurred for the purpose of determining the compensation payable. This provision levels the playing field for the expropriated person and gives him or her the ability to retain knowledgeable legal counsel and experts to present and substantiate his or her case with a small cost risk.
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