Summary

BLG’s Expropriation Law Group is the largest in the country and has handled leading cases on behalf of both expropriated owners and expropriating authorities. Our practice is a balanced one in that we act both for expropriated owners and expropriating authorities in different circumstances. As such, we understand the process from the perspective of both major participants. As a consequence we are often able to see creative solutions to expropriation related problems otherwise not apparent.

Our leadership in the field is highlighted by our authorship of a two-volume reference text, New Law of Expropriation, which is updated on a semi-annual basis and referred to as an authority across Canada.

Members of our group enhance their expertise by practising in a variety of closely related areas of law such as assessment appeals, municipal law, commercial real estate litigation, environmental law, and professional liability work. This ensures that we are ideally positioned to (cost effectively) provide expropriation advice that is mindful of the full legal context of any issue, and demonstrates one of the benefits of working with a full-service law firm.

Understanding your business and how legal changes affect you today and in the future is BLG's business. Like you, BLG believes that nothing less than achieving results through excellence will do. This commitment to service has resulted in the frequent recognition of many of our legal professionals at home and abroad. Professionals in BLG's Expropriation Law Group were featured in the 2014 edition of The Best Lawyers in Canada® and listed as “Repeatedly Recommended” in the 2013 edition of The Canadian Legal Lexpert® Directory.

Our Services

For land owners facing expropriation or the prospect of expropriation we provide not only legal advice but assistance in all facets of the process including negotiation, identification and retainer of experts, options for challenging the decision to expropriate and conduct of the entire litigation process.
More information on our services for expropriated owners.

For expropriating authorities such as municipal governments, health regions, school districts and other land developers, we have considerable experience advising on all aspects of expropriation law. Our services include the option of providing a turn/key approach to expropriations, including the drafting of staff reports, by-laws, resolutions, notices, pleadings, counsel representation before the statutory boards and courts, as well as provision of budgeting for all aspects of the land acquisition program and management and direction of all professional and expert services.
More information on our services for expropriating authorities.

Expropriated Owners

With respect to landowners, our clients range from the largest developers to individual homeowners and farm families. Often we are retained by groups of owners affected by large scale projects. An example of this would be the 80 farm families that we acted for in Lambton County, Ontario when the Province proceeded with the Darcy McKeough Dam and Floodway Project.

A great deal of our work for individual landowners is against Ontario’s Ministry of Transportation. Although we act for other branches of the Ontario Provincial Government we do not act for the Ministry of Transportation in any respect. We are routinely retained by landowners affected by Ministry projects across the Province.

Our Experience

A representative list of our experience for expropriated owners includes:

Martyna Enterprises Ltd. v. City of Calgary, Alberta LCB Order No. 482, dated April 11, 2011

The City of Calgary annexed and expropriated 290 acres of undeveloped land in an area adjacent to the City’s eastern boundary. The City offered $3.1 million for the land, but BLG acted for the owners and argued for much greater compensation. The key issue was the estimated timing for development of the lands in the absence of the annexation. The City argued that development was as much as 20 years away, with the highest and best use of the land therefore being “long-term hold.” BLG showed that the land would have been developable within 7-10 years from the valuation date and was thus much more valuable than estimated by the City. BLG won a decisive victory on the issues – the Board preferred the owner’s evidence in nearly every regard. The Board awarded $7.2 million to the owners, more than double what the City had offered.

Thoreson v. Alberta (Minister of Alberta Infrastructure), 2006 ABCA 250

In 2004, the Province of Alberta expropriated two 17-acre parcels of land from two different owners on the outskirts of Calgary, for the development of the Calgary Ring Road. The lands had been “frozen” for that purpose since 1976, when the Province imposed a “Restricted Development Area” (“RDA”) along the proposed route of the highway. BLG acted for the owners on the question of compensation.

At trial, the judge held that Ms. Thoreson was not entitled to compensation for a building on her property because it was not in compliance with the RDA. The judge also ignored evidence that could have been relevant to the market value of the properties.

On appeal, BLG succeeded by arguing that the Province had in fact consented to the presence of Ms. Thoreson’s building when it granted regulatory approvals for the business she operated within it. The court found that the building was therefore not “illegal” and awarded $271,000 to the owner. BLG also argued that the judge had improperly failed to consider evidence of an offer that Ms. Thoreson had received thirteen years before the expropriation, and evidence of a sale of nearby land for nearly four times the amount offered by the Province. The court agreed and ordered a new trial.

Associated Building Credits Ltd. v. British Columbia (Minister of Transportation and Highways), 2007 BCCA 546

The Province expropriated three acres of a nine-acre parcel in 1996 to create a highway interchange, but it had announced plans for the project in 1989. The owner took its claims for compensation to Expropriation Compensation Board but BLG did not become involved until the appeal of the Board’s decision.

At the Board, the owner argued that it was an investor and developer, and that the expropriated land was “inventory” that had been “sterilized” between the time the highway project was announced in 1989, and 1996, when the expropriation finally occurred. The owner sought compensation for the loss of its inventory during this pre-expropriation “shadow” period. The Board rejected the claim, finding that the losses predated the commencement of the actual expropriation process. The Board also found that the owners had not made adequate efforts to sell or develop the property during the “shadow” period and thus had not mitigated their losses.

The owners retained BLG to act as co-counsel on the appeal. BLG argued that the Board had misinterpreted the law applicable to losses during the shadow period, and had failed to consider why it was prudent for the owners to hold the land rather than sell at a loss during that uncertain period. The Court of Appeal agreed, finding that the Board should have awarded $310,000 for losses from delay during the shadow period, and that the owner’s decision to hold the land was reasonable in light of the pre-expropriation uncertainty.

William A. Middleton, et. al. (Claimants), OMB File No. LC090003, Order Issue Date: February 3, 2010

Owners whose lands are expropriated are sometimes frustrated by the slow pace of the compensation process. Municipal action in particular can sometimes be delayed when municipal council approvals are required. In this case, the expropriating authority had caused delays by failing to comply with a timeline established under a previous procedural order of the Ontario Municipal Board. It can be very difficult to force the expropriation process to move more quickly, but in this instance BLG successfully argued for sanctions against the expropriating authority. This was a rare case in which delay was penalized before the actual hearing on the merits of the case.

Gadzala v. Toronto (City) (2004), 84 LCR 176 (OMB), rev’d in part (2006), 89 LCR 81 (Ont. Div. Ct.), lv ref’d November 1, 2006 (Ont. C.A.)

This case concerned the compensation to be paid by the Metropolitan Toronto Conservation Authority (“TRCA”) and the City of Etobicoke (the “City”) for lands expropriated in Etobicoke’s old “motel strip” along Lake Ontario. BLG acted for the claimants and developed complex claims not just for the ordinary market value of the expropriated land, but also for the value of submerged lands and riparian rights, for lost opportunities to dedicate land, and for injurious affection to the owner’s remaining lands. The case also required the claimants’ planning and appraisal witnesses to imagine how the lands would have developed in the absence of the expropriation scheme.

The Board strongly preferred the appraisal and planning evidence developed by BLG. As a result, the Board accepted all of BLG’s arguments concerning the market value of the lands, including the value of the claimants’ submerged lands and riparian rights. BLG also succeeded on the issue of injurious affection, which the TRCA had claimed was “set off” by the “betterment” associated with the expropriation scheme. The Board ultimately awarded $4.9 million more to BLG’s clients than the City and TRCA had originally offered.

The Board also ordered that the claimants should receive more than $5.8 million as compensation for the delays caused by the expropriation, and for the value of lost opportunities to dedicate land, but these awards were overturned on appeal.

Mikalda Farms Ltd. v. Ontario (2001), 75 LCR 274 (OMB)

Base Ninety Developments Ltd. v. Ontario (Mgmt. Bd. of Cabinet) (2004), 83 LCR 144 (OMB), aff’d (2005), 89 LCR 11 (Ont. Div. Ct.), lv ref’d (2006), 60 RPR (4th) 169 (Ont. C.A.).

Spencer v. Ontario (Management Board of Cabinet) (2004), 84 LCR 73 (OMB), aff’d (2005), 89 LCR 11 (Ont. Div. Ct.), lv ref’d (2006), 60 RPR (4th) 169 (Ont. C.A.).

BLG broke new legal ground with these three cases for owners whose land is affected by the construction of highways across their property. Often the land use controls imposed to facilitate highway construction have the effect of reducing the value of the adjacent land, but owners are not legally entitled to compensation for this “down-zoning” of their property. BLG took an alternate approach in these cases by arguing that the new highway had formed a “hard edge” to the urban development boundary, such that the value of the owners’ undeveloped lands on the “wrong” side of the highway from the urban boundary was reduced not by down-zoning, but by the physical presence of the highway.

In each of these cases BLG successfully characterized the loss as one caused by the highway itself, and then succeeded in arguing that the owners would have been released from the restrictive land use rules associated with the highway, thus making their land developable again. As a result, the loss in value to the owners’ lands could be attributed entirely to the physical presence of the highway, and the owners thus became entitled to compensation under the Expropriations Act for “injurious affection” to their remaining lands. The MTO appealed, but the Divisional Court supported BLG’s analysis in these cases.

Torvalley Development Ltd. v. Metropolitan Toronto & Region Conservation Authority (1988), 40 LCR 81 (OMB), aff’d (1989), 42 LCR 101 (Ont. Div. Ct.).

Torvalley is a leading case on the application of Section 14(4)(b) of Ontario’s Expropriations Act, which provides that the compensation paid for the market value of expropriated land must not include any increase or decrease in value that is attributable to (a) the expropriation, (b) the development associated with the expropriation, or (c) the “imminent prospect” of expropriation. In order to apply this provision, the effect of the expropriation “scheme” must be screened out from the estimated value of the property. The characterization of the “scheme” in legal terms can therefore have a profound impact on the amount of compensation paid for expropriated land.

In this case, the owner in 1984 purchased the “Toronto Brick Works” site along the Bayview Extension. The Metropolitan Toronto and Region Conservation Authority (the “TRCA”) had previously attempted to purchase the lands, but could not obtain the financing in time. The owner paid $4.25 million and began preparing to develop the site for low-density housing and related commercial uses.

The TRCA decided to expropriate the land to protect it for flood control purposes. The key questions for the Board were, when did the expropriation “scheme” arise, and would the land be developable without the scheme? The TRCA argued that the site was heavily regulated and marked for public acquisition before the scheme arose such that no purchaser could reasonably expect to develop housing on the site. They offered compensation of $4.5 million.

BLG argued that TRCA’s “scheme” to acquire the lands had been in place for 28 years and had created an “imminent prospect of expropriation” for that entire period that must be screened out when considering the value of the site. The Board agreed. As a result, the Board refused to consider how the prospect of expropriation would have affected the value of the site or the willingness of public authorities to approve the owner’s plans.

The Board then considered whether the owner would in fact have received the approvals required to develop housing on the site. The owner’s claim of up to $26 million in compensation was based on that assumption. In order to make the necessary determination, the Board placed itself:

… in the shoes of each of the regulatory and statutory approval bodies to discern those principles or policies that would be applied to the Torvalley lands in an atmosphere uncoloured by the prospects of expropriation. Within that atmosphere, the Board will take the site through the planning and development process required by the various statutes to allow residential development to come to fruition.

The Board identified thirteen different approvals that would have been required before the owner could develop housing, including a crucial permit to fill the site and raise its elevation by 87 meters to clear the regional flood line. The Board even considered whether neighbouring ratepayers would have presented effective objections to the project.

BLG presented 21 witnesses and painstakingly demonstrated that the owner would have obtained every permit and surmounted every obstacle to its development. In the end, the Board concluded that the owner had proposed a “most appropriate form of development” and awarded compensation in the amount of $16.2 million.

The TRCA appealed, but the Divisional Court endorsed the Board’s findings. BLG cross-appealed and argued that the Board had erred when calculating the developer’s profit as a component of its award. The Court agreed and increased the award to $19 million.  The final award of compensation was thus $14.5 million more than the TRCA had originally offered.

Frankl v. Ottawa (City) (2006), 90 LCR 225 (OMB) aff’d (2007), 94 LCR 1 (Ont. Div. Ct.)

The City of Ottawa expropriated the owner’s ravine-like “valleylands” to provide stormwater management facilities for nearby housing developments. The City also took some of the owner’s level “tablelands.” The City said that the valleylands were undevelopable and would never have been used to provide stormwater management in the absence of the City’s “scheme.” The City offered $3,500 per acre for those lands. BLG acted for the owners and argued that the valleylands should be valued for their “special adaptability” for purposes of storm water management.

In order to prove special adaptability, BLG demonstrated that (i) private developers would have been required to provide stormwater management facilities if the City had not initiated its own scheme, (ii) developers would have preferred to use the owner’s valleylands for that purpose rather than consuming more valuable tableland and (iii) developers would have received the necessary approvals in time to make the owner’s lands very valuable. BLG also argued that the relevant real estate market did not distinguish between valleylands and tablelands, and that the expropriated lands should therefore be given a “blended” per-acre value.

The City argued that developers would have dedicated the valleylands to the City, but the Board agreed with BLG on all the major issues and awarded the owners nearly $1.5 million, more than ten times the amount originally offered by the City. The City appealed, but the Divisional Court supported BLG’s analysis.

In Re Aarssen and Eighty-Five Others and the St. Clair Region Conservation Authority (unreported report of the Inquiry Officer, dated January 1982).

Property owners in Ontario whose land is expropriated are statutorily entitled to a “hearing of necessity” before an Inquiry Officer who will consider whether the expropriation is “fair, sound and reasonably necessary.” These hearings rarely result in significant changes to the plans of an expropriating authority, but on occasion an owner does convince the Inquiry Officer that the scope of an expropriation should be reduced.

In this case, the St. Clair Region Conservation Authority sought to expropriate easements and land in fee simple for flood control purposes. The proposed easements would allow the Authority to clear the subject lands and flood them. Ninety-one owners sought a hearing of necessity and BLG represented more than 50 of those owners.

With respect to the easements, BLG argued that the proposed easement language granted nearly unlimited rights to the Authority, and that the Authority’s rights should instead be more closely tied to its flood control objectives. For the lands that the Authority sought to expropriate in fee simple, BLG argued that in most cases a taking in fee simple was unnecessary because an easement would suffice. BLG also argued that the Authority should not be permitted to expropriate subsurface rights, which were not required for flood control. The inquiry officer agreed with each of BLG’s arguments, and nearly all of the officer’s recommendations were later adopted by the Minister responsible for approving the expropriations.

Cronish v. Toronto (City) (1984), 30 LCR 294 (OMB) aff’d (1986) 37 LCR 107 (Ont. Div. Ct.)

The City of Toronto expropriated a scrap metal recycling business to make way for redevelopment in the St. Lawrence Market neighbourhood. BLG won substantial compensation for the owner on a variety of fronts:

The lands were zoned for industrial use, but BLG won decisively on the question of market value by proving that the land should instead be valued as “holding for redevelopment” land. This increased the amount of the owner’s compensation by more than 30%.

BLG also established the owner’s claims for lost profits from business disruption and premature sales of inventory, and thus won substantial compensation for the owners where the City was inclined to pay little.

BLG also innovated a claim for “irrevocable capital costs” attributable to the owner’s need to construct a specialized new building on leased property after relocating from the expropriated site, such that the lease term at the new site might not permit full amortization of the new building, and the new building would have no residual value because of its specialized nature.

Finally, BLG convinced the Board to impose a “penalty” rate of interest on the City for improper delays in payment of the statutory compensation, and in the conduct of the arbitration before the OMB.

The City appealed but the Divisional Court upheld all of these findings, including the “irrevocable capital cost” claim.

Expropriating Authorities

We work for development clients in situations where we are experts who are part of a larger consultant team. In other instances we take the lead in resolving conflicts between developers and public authorities.

Our public sector clients include a large variety of municipalities. We have acted on significant matters for major municipalities such as the City of Toronto and the City of Windsor and also for smaller municipalities such as the Township of Ramara. We also act for various school boards with respect to the acquisition of school sites.

Expropriation law became a significant part of the practice of BLG during the 1970's in the wake of the expropriations to facilitate the planned international airport in Pickering, Ontario. Although the airport was never built, the expropriations proceeded and generated a wealth of litigation which tested many of the provisions of Ontario’s relatively new expropriation legislation, which had been passed in the 1960's.  The federal government passed very similar legislation in the early 1970's.  These statutes were referred to generally as reform legislation because their intent was to make organized and coherent a jumble of conflicting case law. BLG’s pre-eminence in the field was reflected by the publication in 1978 of the Ontario Expropriation Handbook. This text has been updated through the publication of the current text New Law of Expropriation.

Our Clients

We are routinely retained by municipal governments, ranging from large cities and regions to smaller townships, to address land acquisition management problems. These have included:

  • City of Toronto
  • The County of Oxford
  • City of Woodstock
  • City of Windsor
  • Region of York
  • Region of Halton
  • Region of Peel
  • City of Vaughan
  • Region of Durham

Our Experience

A representative list of our experience for expropriating authorities includes:

Windsor (City) v. Paciorka Leaseholds Limited, 2012 ONCA 431

BLG represented the City of Windsor against claims arising when the City expropriated land in the “Spring Garden Planning Area” in order to create a park.  The land had been designated as an “Area of Natural and Scientific Interest” by the province, and as “Natural Heritage” lands by the City, but the area had previously been designated for residential use.  The owners claimed that the City’s “scheme” for the park must be screened out, and that the expropriated lands should be valued as though they were developable for residential use.  Ontario’s Expropriations Act does require that the park “scheme” be screened out for purposes of determining the market value of that lands, but BLG argued that the Provincial Policy Statement (“PPS”) issued in 1996 was independent of the City’s “scheme” and would have prevented residential development on the expropriated lands, quite apart from the scheme.  The Ontario Municipal Board ignored the PPS in its decision and awarded compensation as though the lands were developable.  BLG appealed, but the Divisional Court upheld the OMB in a split decision.  BLG appealed again and won a unanimous decision at the Court of Appeal.  The court sent the matter back to the OMB to be determined in accordance with the PPS.
Read more (PDF, 193KB)

David Geneen v. City of Toronto, OMB Order No. 0324, Issue Date Feb. 28, 2001

Jackie-Pie Holdings Ltd. v. City of Toronto, OMB Order No. 0324, Issue Date Feb. 28, 2001

Metcorp Ltd., et al v. City of Toronto, OMB Order No. 0324, Issue Date Feb. 28, 2001

The City of Toronto expropriated land in 1988 for the proposed Ataratiri project – a major redevelopment of the lower Don Lands area. This case concerned the City’s expropriation of two parcels of industrial land totalling approximately 126,000 square feet. Six different claimants sought a total of $18.3 million in compensation for the land and related business losses. BLG acted for the City.

The case turned on the appraisal evidence, including the question of the appropriate “vicinity” from which to select comparable transactions. Three of the four appraisers selected comparables located west of Parliament Street, but the City’s main appraiser argued that Parliament Street should be the western boundary of the “vicinity.”

The Board considered detailed evidence on the types of buildings present on either side of Parliament, and on the question of whether downtown development pressure had crossed Parliament from the west. The Board ultimately found that only the City’s appraiser had experience in the subject area during the relevant time, and it endorsed his position on the question of vicinity. As a result, the Board also preferred the City appraiser’s evidence on value, and in many cases he alone had relied on the comparables that the Board found to be most persuasive. This success on the “vicinity” question gave the City a strong advantage in the case.

The claimants also sought $1.7 million for business losses. The Board heard detailed evidence on whether the losses were caused by the expropriation or by a recent recession. The Board strongly preferred the City’s evidence and denied the business loss claim in its entirety.

The claimants had sought a total of $18.3 million but in the end the Board awarded only $13.4 million. Much of this success can be attributed to BLG’s identification of the key issues, its selection of the strongest expert witnesses for the case, and its rigorous arguments in support of those witnesses.

Marvin Hertzman Holdings Inc. v. Toronto (City) (1998), 36 OMBR 321, aff’d [1998] 113 OAC 312 (Div. Ct.) lv ref’d (1998), 165 DLR (4th) 529n (Ont. C.A.)

BLG defended the City of Toronto’s plans for the redevelopment of Yonge-Dundas Square against serious challenges from some of the business owners who were to be forced out by the project. The case involved the validity of the City’s designation of the square as a “community improvement project area”. The applicants also challenged the City’s power to expropriate land and convey it to private developers.

Some of the affected owners applied to the Ontario Municipal Board and sought to advance their own plans for development of the square. BLG presented a wide array of evidence in defence of the City’s plan, including market analysis applicable to urban malls and entertainment-oriented development, and financial analysis of the City’s specific proposal. The Board even took a trip to New York City to observe the redeveloped Times Square.

The Board eventually adopted BLG’s arguments that the opportunity to redevelop Yonge-Dundas Square as an “urban entertainment centre” would be lost if not pursued quickly, and that only the City’s plan could be implemented quickly. The Board then expressed “full confidence that the project will be achieved as envisaged” with “minimal risk to the City.”

On the question of the City’s jurisdiction to implement the plan, the owners argued that the plan was unjustified because their businesses were not “blighted,” but the Board endorsed BLG’s position that the applicable sections of the Planning Act were “not limited to curing physical blight” and should be given a broad interpretation to permit redevelopment of the type that was proposed. Finally, the Board could find no reason to prohibit the City’s expropriation of land for conveyance to private developers. The owners appealed but the Divisional Court endorsed the Board’s findings.

Masae Ltd. v. Toronto (Metropolitan) (1992), 49 LCR 1 (OMB)

In the Masae case, BLG acted for the City of Toronto and established for the first time that environmental remediation costs can be deducted from the market value of expropriated land. The case also represented another decisive victory for BLG on the overall question of valuation.

The City acquired approximately five acres in an industrial area for purposes of extending Front Street. The owners claimed $17.4 million in compensation based on their plans to redevelop the property and lease it as a corporate headquarters. The City offered $3.8 million and argued that the owners could not prove key propositions in support of their claim.

The Board observed that the case would be based on cross-examination of the owners’ experts and that, “If one link fails, and if the chain is truly a chain, the chain must fail.” In this sense the case was similar to the Torvalley case, but this time BLG acted for the expropriating authority and proceeded to prove that each of the five “links” in the owners’ chain would indeed fail.

On the key question of whether the owners would have received the necessary planning approvals required for their project, the Board agreed with BLG that the City would not have approved increased density on the site. The owners also relied heavily on the value of an executed lease with their proposed corporate tenant, but BLG presented 40 different reasons why the lease was not an arms-length transaction and should not be considered as evidence of value. The Board agreed.

On the appraisal evidence, the owners argued that the “highest and best use” was comparable to mixed-use properties further north and east. BLG argued that the highest and best use was industrial, and that the property would be built at less than maximum density. The Board agreed that the owners’ plans were “unreasonable and speculative” and had not taken into account important factors such as poor traffic patterns at the site, a lack of transit, and limited visibility from the Gardiner Parkway. Once the Board arrived at these conclusions, they also rejected the owners’ evidence on market value and instead accepted BLG’s positions.

The City had offered $3.8 million for the land, but had not deducted the costs of demolishing existing buildings or remediating the soil. BLG argued that these costs should be deducted from market value and broke new ground when the Board agreed to deduct not only the demolition costs, but also the remediation costs. The Board thus reduced its final award for market value from $3.8 million to $2.9 million, or $14.5 million less than claimed by the owners.

Blandford Square Developments Ltd. v. Oxford (County) (2006), 91 LCR 206 (Ont. SCJ)

The County of Oxford and the City of Woodstock sought to acquire approximately 1,000 acres to facilitate construction of a major Toyota manufacturing plant. The owners of one 91-acre parcel held out. BLG acted for the municipalities and sought to negotiate an amicable purchase of the land, but the parties were $12 million dollars apart in their estimates of value. The municipalities eventually initiated expropriation proceedings, with support from the Lieutenant Governor-in-Council, who waived the owners’ entitlement to a “hearing of necessity.”

The owners launched a civil suit against the municipalities in which they alleged conspiracy, lack of jurisdiction to expropriate, and tortious interference with economic relations. Their basic complaint was that the municipalities had deprived the owners of value because, they argued, the compensation paid on expropriation is always less than market value. On this basis the owners advanced a claim for damages and moved for an injunction to reverse the expropriation.

BLG defended the motion for injunction and brought a cross-motion for summary judgment.  The court denied injunction after BLG argued successfully that the “balance of convenience” favoured the municipalities because money could compensate the owners, but the Toyota opportunity might vanish if the defendants could not deliver title as promised.  BLG also succeeded in part on its summary judgment motion, but this latter finding was overturned on appeal.

Region of York – Expropriations along Highway 7 – Hearings of Necessity, report of the Inquiry Officer dated May 9, 2009

When municipalities expropriate land in Ontario, the affected landowners are entitled by statute to a “hearing of necessity” in which an Inquiry Officer hears arguments as to whether the taking is “is fair, sound and reasonably necessary in the achievement of the objectives of the expropriating authority.” Hearings of necessity only occasionally result in changes to an expropriation plan, but they are expensive for municipalities and can cause delays. For that reason and many others, municipalities generally seek to negotiate settlements and thus avoid expensive hearings of necessity and arbitration proceedings.

Nonetheless, municipalities must sometimes move rapidly. In 2009, the Region of York confronted this dilemma when expropriating land for rapid transit improvements along Highway 7. The Region faced tight deadlines for federal funding, and the owners of 18 different properties had requested hearings of necessity. BLG represented the Region and quickly initiated negotiations with the owners. In many cases, BLG was able to negotiate settlements that entirely eliminated the need for the Region to expropriate. BLG ultimately resolved all of the outstanding issues before the scheduled date of the hearing and thus saved the Region a substantial sum of money.

Shergar Developments Inc. v. Windsor (City) (2005) 93 LCR 178 (Ont. SCJ), aff’d 2007 ONCA 666 and 2007 ONCA 667

This case involved complicated property law issues and an allegation of bad faith against BLG’s client, the City of Windsor. The plaintiff had purchased former Canadian Pacific Railway (“CPR”) lands on the north and south sides of Riverside Drive. The two parcels were connected by land beneath a bridge on Riverside, but it was unclear who owned the bridge or the land beneath it. The lands to the north of Riverside ran along the Detroit River. The City had long intended to acquire those lands for inclusion in a riverfront park, but the applicable land use policies also permitted development. The lands to the south were developable but were landlocked except for the land under the Riverside bridge.

The owner sought permission to develop the southern parcel, but negotiations with the City were unsuccessful. The City ultimately decided to expropriate the owner’s northern parcel in order to protect its plans for a riverside park.

The owner commenced a civil suit, alleging bad faith on the part of the City. The owner also claimed that it had acquired the Riverside bridge and the land beneath it from CPR, such that its two parcels were contiguous. In support of this claim the owner asserted that Riverside Drive did not exist when CPR acquired the lands in 1888, and that CPR’s lands would therefore have included the land beneath the bridge.

BLG acted for the City and presented evidence that Riverside Drive did exist in 1888, and that railways do not acquire title to municipal roads when train tracks cross those roads. In addition, BLG established that CPR was prohibited under the Railway Act from expropriating municipal rights of way, so it could not have acquired the bridge or the land beneath them in that fashion.

The court agreed and found that CPR had built the bridge, but the City owned both the bridge and the land beneath it. The court also found that CPR had agreed to maintain the bridge in perpetuity because its agreement with the City included no expiry date. Finally, the court rejected the owner’s claims of bad faith with respect to the expropriation, finding instead that the City reasonably believed it had “no alternative” but to expropriate. The Court of Appeal affirmed the court’s decision. The City of Windsor saved millions of dollars as a result of this success.

Legoyeau Holdings Ltd. v. Windsor (City) (1993) 52 LCR 241 (Ont. Div. Ct. ), aff’d (1994) 52 LCR 241 (Ont. C.A.)

The City of Windsor expropriated the owner’s land for use as a casino. The owner sought to quash the expropriation by arguing that casinos were illegal at the time and that it was therefore improper for the City to expropriate for that use. The owner also argued that the proposed use did not comply with the “redevelopment” provisions of the Planning Act, or with the applicable City by-law.

BLG defended the City and convinced the Divisional Court that the City’s proposed use of the land was consistent with its stated objectives, and that the use was legitimate. The City’s by-law had envisioned that the area would accommodate “commercial uses other than those that serve a neighbourhood function.” BLG argued that this language was broad enough to accommodate the casino uses proposed by the City. The Court agreed.

The Court also held that the owner could no longer challenge the legality of the casino use because the expropriation had already been approved following a “hearing of necessity.” The owners appealed on seven different grounds, but the Court of Appeal found that the use would be legal and it affirmed the lower court’s decision.

Lee Brothers Ltd. v. Windsor (City), (2004) 84 LCR 49 (OMB), aff’d (2005) 24 MPLR (4th) 144 (Ont. Div. Ct.), lv ref’d (2005) 38 MPLR (4th) 57 (Ont. C.A.)

The City of Windsor expropriated the site of the “Cheetahs” adult entertainment club in order to facilitate redevelopment in downtown Windsor. The City paid the owners more than $1 million to cover the costs of relocation and renovations at the owners’ new facility, but the City denied the owners’ claim for $4 million in business losses.

The owners’ revenues at the new location were steady at first, but then fell off sharply and remained weak in the years following the expropriation. The owners argued that the losses were caused by the expropriation, and that the new site was inferior to the original site in numerous ways, including that it attracted a younger and less affluent crowd.

BLG represented the City and argued that the losses could be explained by a variety of factors other than the expropriation. Most importantly, BLG demonstrated that patrons from Detroit were a major source of the club’s revenues and that the terrorist attacks of September 11, 2011 had resulted in a significant decline in cross-border business. BLG also pointed to the effects of increased competition from a new adult club in Windsor, and new casinos in Detroit. BLG called the owners of nearby adult entertainment businesses to testify that revenues at their establishments were also down, and BLG answered every one of the owners’ arguments that the new Cheetahs site was inferior to the original site.

The Board concluded that the expropriation was not the major cause of the owners’ business losses. The Board instead agreed with BLG that the owners’ accountants had ignored other potential causes of those losses, and also concluded that the new Cheetahs site was “largely equivalent” to the original site. The Board thus awarded no business losses to the claimants. The owners appealed, but the Divisional Court affirmed the Board’s decision.

Publications & Presentations

Members of our Expropriation Group frequently write and present on expropriation-related topics. What follows is a partial list of those papers and presentations.

Publications

  • "BC Expropriation Association — Case Law Update," March 2013.
  • "SCC Rules on Antrim — Considerations for Public Authorities," March 2013.
  • "Understanding Expropriation Law," Canadian Property Management Magazine, March/April 2011.
  • "Preventative Practice," Canadian Appraiser Magazine, Volume 49, Book 4, 2005.
  • "Negligence and Professional Standards," Canadian Appraiser Magazine, Volume 49, Book 2, 2005.
  • "Case Law Update: Injurious Affection to Lands Trapped in the Parkway Belt West Plan," Ontario Expropriation Association Newsletter, Spring 2004.

Presentations

  • "New Expropriation Law – Noteworthy Cases from the Last Year," British Columbia Expropriation Association Annual Conference, November 2012.
  • Annual Case Law Update, Ontario Expropriation Association, October 2012.
  • "The Impact of Environmental Contamination In Expropriation Compensation Claims," Ontario Expropriation Association, May 2012.
  • "Time After Time - Use of Post-Expropriation Date Comparable Sales in Compensation Actions," British Columbia Expropriation Association Annual Conference, November 2011.
  • "Expropriation in a Time of Massive Infrastructure Spending," IRWA Fall Education Seminar, October 2, 2009.
  • "Green Belts and Ring Roads: Land Use Planning or Down-Zoning for Infrastructure Development," Alberta Expropriation Association, October 3, 2009.
  • "Piercing the Corporate Veil: Avoiding Personal Liabilities for Appraisers," The Appraisal Institute of Canada, June 12, 2009.
  • "Expropriation in a Time of Infrastructure Spending," OAMREA Spring Conference, May 22, 2009.
  • "Regulatory Changes Mean Work for Appraisers," The Appraisal Institute of Canada, April 25, 2009.
  • "Legal Implications of Grow Ops in Ontario," and "Legal Issues to Consider in the Appraisal of Real Estate," The Appraisal Institute of Canada, April 3, 2009.
  • "Impacts of Distorted Values for Tax Assessment," 2009 Real Estate & Property Tax Forum, February 3, 2009.
  • "Market Valuation: The Relationship Between Climate Change and Real Estate Valuation," OEA Annual Fall Conference, October 24, 2008.
  • "Procedures Prior to Hearing," Ontario Expropriation Association Training Session, October 6- 7, 2008.
  • "Partial Takings: An Overview of the Law of Injurious Affection," Ontario Municipal Board, October 5, 2008.
  • "Market Valuation: The Relationship between Climate Change and Real Estate Valuation," Borden Ladner Gervais LLP, June 6, 2008.
  • "The Fairness Equation," OEA Spring Event, May 8, 2008.
  • "Compensation Where No Land Is Taken: Update of the Law in Alberta," 2008 Alberta Expropriation Association Annual Conference.
  • "Role of a Community Improvement Plan in Supporting Infrastructure Development," Construction Law Group, November 27, 2007.
  • "Achieving a Win-Win or Mutual Value-Added Transaction," Conference for the 2nd Advanced Negotiating for Real Estate Transactions, Federated Press, June 18, 2007.
  • "An Overview of the Expropriation Process in New Brunswick," Annual Conference of the New Brunswick Association of Real Estate Appraisers, April 26, 2006.
  • "The Law of Appraiser's Liability," Annual Conference of the New Brunswick Association of Real Estate Appraisers, April 26, 2006.
  • "Recent Developments In Land Compensation: A Case Law Update – 2006," International Right of Way Association, Kingston, Ontario, April 7, 2006.
  • "Urban Renewal Land Assembly – Where Do We "Grow" From Here?" International Right of Way Association, Chapter 29 & the Ontario Association of Municipal Real Estate Administrators, October 14, 2005.
  • "Ignoring the Scheme or Reforming the Planning Purpose/Expropriation Paradigm," Ontario Expropriation Conference, Toronto, October 22, 2004.
  • "Balancing Rights and Interests: A Comparative Discussion of the Expropriation Acts in Ontario and Alberta," address by Stephen Waqué and presentation by Frank Sperduti, Annual Fall Conference and the Alberta Expropriation Association, Canmore, Alberta, October 2004.
  • "Proving Market Value: Legal Issues for Appraisers," The Appraisal Institute of Canada, Niagara Falls, April 2004.Address by Stephen Waqué on Bills 26 and 27, Municipal Law Section of the Ontario Bar Association, March 31, 2004.
  • "Finding Salvation after Salvation Army: Coping with not Being Able to Ignore the Scheme," Seminar of the BC Expropriation Association, Vancouver, October 24-26, 2003.
  • "The Structure of a Cross-Examination of an Appraisal Witness: How To Do It If Examining and What to Expect if Being Examined," Seminar of the Ontario Association of the Appraisal Institute of Canada, Ottawa, February 28 - March 1, 2003.
  • "Avoiding Personal Liability for Real Estate Appraisers," The Appraisal Institute of Canada, Ottawa, January 2003.
  • "The Lawyer-Appraiser Relationship," The Appraisal Institute of Canada, Niagara Falls, November 2002.
  • "The Structure of a Cross-Examination of an Appraisal Witness: How To Do It If Examining and What to Expect if Being Examined," Summer Seminar of the Ontario Association Of the Appraisal Institute of Canada, June 12 and 22, 2002.
  • "Preparing the Expert Witness for Trial," The Appraisal Institute of Canada, Toronto, June 2002.
  • "Developments in Expropriation Law: Highlights for Appraisers," Fall Seminar of the Credit Valley Chapter of The Appraisal Institute of Canada, October 11, 2001.
  • "The Role of Expropriation in City Centre Revitalization," Spring Meeting of the Ontario Expropriation Association, June 1, 2000.
  • "The Dynamics of Legal Analysis in the Context of Contaminated Sites Valuation," Federated Press Conference on Structuring Commercial Real Estate Transactions of Contaminated Sites, February 8-10, 2000. McColl-Frontenac Environmental - Los Angeles, January 7, 1997 (up-dated March 6, 2000).

Expropriation Links

Canada

Alberta

British Columbia

Manitoba

New Brunswick

Newfoundland & Labrador

Northwest Territories

Nova Scotia

Nunavut

Ontario

Prince Edward Island

Québec

Saskatchewan

Yukon

Other Links

 
Information on "New Law of Expropriation"

Coates & Waqué, New Law of Expropriation©, (Carswell), is written by the members (and one former member, who has now retired) of BLG’s Expropriation Law Group. It is the leading Canadian text about the law of expropriation: that is, the law surrounding the taking of land from individuals and corporations by the government. The various branches of government take land for many reasons, from the widening of roads to the construction of projects such as water and sewage plants, or Ontario's Highway 407. Usually, government representatives try to negotiate with a landowner before exercising the power to forcibly take land.

The information contained in the text will be especially important to you if you are a government authority thinking of acquiring land, or if you have been approached by a government authority and want to understand more about your rights and options.

Set out below are extracts from the text, which provide an overview of expropriation law generally and a sampling of its contents.

Introduction

The basic objective of this text was to allow practitioners in every province to have the benefit of the law hammered out in the heat of litigation in other jurisdictions. Perhaps this might lead to greater certainty in the law in each jurisdiction and thus produce a greater propensity toward satisfactory settlement. However, the danger of a larger body of case law, apparently covering most situations, is that a rigidity will creep into the law of expropriation. To avoid this, the uniqueness of each particular fact situation and the reform spirit of the new Expropriations Act must continue to be highlighted when cases are presented.

How to Use This Publication - The Tabs on Each Act

There is an index to the text which will prove useful in many instances, but each practitioner, whether lawyer, appraiser, accountant or other expert, must start by reading through ... the act of the jurisdiction which applies. In most cases each section of the statute is preceded by a descriptive heading taken, where available, from the marginal notes in the official printing of the legislation. While these notes do not have legal effect as part of the legislation itself and are occasionally misleading as to the section's effect, they were adopted for the benefit of consistency.

When a relevant section is identified by this overview, the cases which bear on the section will be found discussed under various headings and subheadings. A review of the headings and subheadings should direct the reader further to the discussion most relevant to his or her problem. Related sections in other reform acts are described in a heading or subheading usually entitled "Other Jurisdictions". By referring to the tabs on other jurisdictions and locating the particular section number given, the reader can have access to the law of other jurisdictions which might bear on his concerns. The relevance of the case law of other jurisdictions will depend on how closely these sections of the other act or acts are related to the act of the jurisdiction in question. The reader will be impressed, after a short time, with how often the acts parallel each other.

Reference should be made to the heading numbers found in this publication. They have no significance in themselves except for allowing a shorthand reference to the particular subheadings with which they are identified.

The Tab on Evidence

The tab on Evidence is distinctive in that it is not organized under sections of an Expropriation Act. The tab on Evidence was created for two reasons. First, cases on topics of evidence decided under the Ontario Act had multiplied to such an extent that it was no longer convenient to discuss them under particular sections of that Act. Second, the authors desired to provide to the less experienced practitioners an overview on the preparation of a case for arbitration. An understanding of the Ontario Act, particularly section 14 (market value) and section 21 (injurious affection) is not complete without a review of the Evidence tab. In other jurisdictions evidentiary problems are covered, to the extent the cases available allowed, usually in the discussion under the sections on market value and injurious affection.

As this work evolves it is expected that more extra-Ontario cases will find their way into the material on Evidence, and discussion of evidentiary issues in the tabs on other acts will decrease. For the present, appraisers in Alberta, for example, who wish to learn what factors for adjusting comparable sales will be appreciated by the Alberta Land Compensation Board, as a second step, appraisers ought not only to refer to the discussions under related sections of other acts described in '6.0 of Alberta section 41, but they ought also to review the tab on Evidence, particularly '8.03.00 of that tab. For one unfamiliar with evidentiary problems in this field, the first reference should always be to the tab on Evidence no matter what act governs the problem at hand, so that the issues can be seen in context. Finally, it must affirmed that this publication is only a starting point for research; nothing will substitute for careful reading of the relevant cases themselves.